LAW  AND  ORDER 
IN   INDUSTRY 


JULIUS   HENRY  COHEN 


UNIVERSITY  OF  CALIFORNIA 
AT  LOS  ANGELES 


LAW  AND  ORDER  IN  INDUSTRY 


THE  MACMILLAN  COMPANY 

NEW   YORK   •    BOSTON    •    CHICAGO    •   DALLAS 
ATLANTA    •    SAN   FRANCISCO 

MACMILLAN  &  CO.,  Limited 

LONDON    •   BOMBAY    ■  CALCUTTA 
MELBOURNE 

THE  MACMILLAN  CO.  OF  CANADA,  Ltd. 

TORONTO 


LAW  AND  ORDER  IN 
INDUSTRY 

FIVE  YEARS'  EXPERIENCE 


BY 
JULIUS  HENRY   COHEN 


Nfm  fork 

THE  MACMILLAN   COMPANY 

1916 


AU  rights  reserved 


Copyright,  1916 

By  the  MACMILLAN  COMPANY 

Set  up  and  electrotyped.     Published  February,  1916. 


Vi 


00 


»\-i 


TO  MAX  M.  SCHWARCZ, 

OF  THE  SMALL  BAND  WHO  BLAZED 


A  TRAIL  THROUGH  THE  THICK  FOREST, 

THE  FIRST  TO  ENTER  THE  LAND 

OF  MYSTERY. 

PROUD,  BRAVE,  LOYAL,  A  DEAR  AND 

A  GOOD  FRIEND  TO  ALL  WHO 

LABORED  TRULY. 


^.' 


207912 


TO  THE  READER 

Magazine  writers  have  written  sketches  and  Govern- 
ment investigators  have  compiled  statistics  about  the 
New  York  experiences  with  the  "Protocol" — a  curious 
animal  newly  arrived  in  the  industrial  menagerie.  (He 
is  but  five  years  old.)  No  one  has  tried  to  take  his  pic- 
ture in  motion. 

The  photographer  here  is  a  lawyer.  Some  people 
think  that  disqualifies  him  from  being  a  photographer, 
or  for  that  matter,  from  being  anything  human.  Worse 
still,  he  is  a  lawyer  for  "capitalists,"  i.  e.,  men  who 
employ  labor,  and  who,  it  is  assumed,  generally  do  no 
labor  themselves — like  the  lawyer.  In  common  with 
his  kind,  the  lawyer  likes  to  study  the  antics  of  animals. 
This  one  is  ahve,  very  much  aHve.  Perhaps  the  picture 
is  not  focused  as  you  would  like  it.  You  may  like  it 
at  a  different  angle.  Then  run  the  reels  over  again  and 
be  your  own  censor.  In  other  words,  here  are  the  facts : 
draw  your  own  inferences  if  the  inferences  in  the  book 
are  not — to  your  mind — sound. 


vu 


CONTENTS 

CHAPTER  PAGE 

To  THE  Reader vii 

Introduction xi 

I.  Anarchy ' i 

II.  The  Closed  Shop 14 

III.  The  Policy  of  the  Protocol 28 

IV.  The  Joint  Board  of  Sanitary  Control 43 

V.  The  Board  of  Grievances 61 

VI.  The  Chief  Clerks  and  the  Deputies 69 

VII.  A  Sidelight 74 

VIII.  The  New  York  Cloak  Business 84 

IX.  The  Crisis  of  1913 loi 

X.  1914 — The  Committee  on  Immediate  Action.  .  . .  124 

XI.  Hiring  and  Discharging 128 

XII.  1914-1915.    The  Clash 136 

XIII.  1 91 5.    The    Board    on    Arbitration.    What   is 

"Fair  and  Reasonable"  ? 153 

XIV.  The  Termination  of  the  Protocol 158 

XV.  The  Mayor's  Council  of  Conciliation 168 

XVI.  The  New  Trial  Board 178 

XVII.  The  Revival  of  the  Protocol 186 

XVIII.  Inferences 191 

XIX.  Law  Breaking 205 

XX.  The  White  Protocol  Label 216 

XXI.  A  Federal  Industrial  Council 225 

ix 


X  CONTENTS 

CHAPTER  PAGE 

XXII.  Vision  and  Effort 229 

Appendix  A — Text  of  the  Protocol  Agreement  243 

Appendix  B — Rules  and  Plan  of  Procedure 249 

Appendix  C — Decision  of  Board  of  Arbitration  258 
Appendix  D — Findings  and  Recommendations  of 

Council  of  Conciliation 280 

Appendix  E — Industrial  Agreements 288 

Appendix  F — Skeleton  Outline   of  Provisions 

of  a  Bill 291 


INTRODUCTION 

The  business  of  making  clothes  for  women  brings 
up  for  the  average  male  a  picture  of  a  highly  expensive 
dressmaker's  estabhshment  (to  which  his  wife  or  daughter 
repairs  but  too  often  for  his  pecuniary  comfort),  a  tene- 
ment house  sewing  machine  with  a  sick,  overworked 
mother  and  a  string  of  helpless  children  scampering 
about,  or  a  "sweatshop"  that  the  Board  of  Health 
ought  to  suppress — and  why  doesn't  it? — or  possibly 
a  Montague  Glass  play.  But  to  those  who  know,  it  is 
an  industry  that  employs  in  New  York  alone  over  one 
hundred  thousand  people,  has  a  capital  investment  of 
$100,000,000,  and  in  the  industries  of  the  country  ranks 
eleventh  in  number  of  workers  employed  and  fifteenth 
in  value  of  products  manufactured.  In  New  York  City 
alone  over  half  of  all  the  clothing  worn  by  the  men  and 
women  in  the  United  States  is  made.  It  is  estimated 
that  sevanty  per  cent  of  the  women's  clothing  manu- 
factured in  the  United  States  is  made  in  New  York  City. 
According  to  the  census  for  1909,  the  annual  output  of 
women's  clothing  was  $266,477,000.  It  is  an  industry 
where  the  dividing  line  between  capitaHst  and  laborer 
is  not  easy  to  locate.     With  a  few  hundred  dollars  a 


xii  INTRODUCTION 

worker  can  buy  a  machine,  rent  a  small  loft,  secure 
cloth  on  credit,  and,  if  he  has  executive  abihty  and  works 
hard,  become  a  "boss."  As  is  generally  known,  it  is 
one  of  those  industries,  both  on  the  employers'  and  on 
the  workers'  side,  classified  as  "the  Hebrew  trades," 
the  percentage  of  ItaUan  workers  being  very  small. 

The  Protocol  of  Peace  in  the  cloak  and  suit  industry 
was  signed  on  September  2,  1910,  and  is  to  be  found  as 
Appendix  A.  It  was  signed  after  a  very  bitter  strike 
that  involved  nearly  sixty  thousand  people.  It  has 
preserved  general  peace  in  the  industry  since  1910,  in 
spite  of  the  fact  that  during  that  time  serious  crises 
have  arisen  in  the  industry.  It  came  about  through 
the  intervention,  first,  of  Louis  D.  Brandeis,  and  later 
of  Louis  Marshall,  with  the  aid  of  Meyer  London,  the 
lawyer  for  the  Union,  and  myself,  as  counsel  for  the 
employers.  By  this  document  there  was  created  a 
Board  of  Arbitration,  consisting  of  the  appointee  of 
both  sides  and  a  third  person  chosen  by  both,  a  Board 
of  Sanitary  Control  made  up  of  representatives  of  the 
employers,  workers,  and  the  public,  and  a  Board  of 
Grievances,  made  up  of  representatives  of  both  sides. 
The  agreement  in  essence  is,  in  its  nature,  a  fundamental 
constitution  for  the  doing  of  business  between  the  workers 
and  the  employers,  with  a  supreme  judicial  tribunal,  a 
conciliation  and  mediation  department,  a  department 
for  the  establishment  of  legislation  by  consent  of  both 


INTRODUCTION  XlU 

parties,  and  an  administration  department.  The  Board 
of  Arbitration — the  supreme  judicial  tribunal — was 
originally  made  up  of  Louis  D.  Brandeis  as  chairman, 
Hamilton  Holt,  and  Morris  Hillquit.  In  191 2  Mr.  Hill- 
quit  resigned  and  his  place  was  taken  by  Dr.  Walter  E. 
Weyl.  In  1914  Dr.  Weyl  resigned  and  his  place  was 
taken  by  Mr.  William  O.  Thompson  (counsel  for  the 
United  States  Commission  on  Industrial  Relations), 
the  other  two  members  of  the  Board  continuing  until 
the  termination  of  the  Protocol  in  May,  1915.  The 
Joint  Board  of  Sanitary  Control  is  made  up  of  Dr.  Wil- 
liam J.  Schieflfelin,  chairman.  Miss  Lillian  D.  Wald, 
and  Dr.  Henry  Moskowitz,  as  representatives  of  the 
public,  with  two  representatives  of  the  employers  and 
two  representatives  of  the  unions.  The  Director  of  the 
Board,  under  whose  supervision  the  work  is  conducted, 
is  Dr.  George  M.  Price,  author  of  "The  Modern  Fac- 
tory." 

Through  the  institutions  created  by  the  Protocol, 
the  industry  was  lifted  to  a  higher  plane  of  sanitary  and 
health  protection  regulation,  with  marked  material  ad- 
vances to  the  workers.  Although  the  Protocol  was 
terminated  in  May,  191 5,  a  few  months  later,  through 
the  conciliatory  efforts  of  the  Mayor's  Council  of  Con- 
ciHation,  consisting  of  Dr.  Felix  Adler,  the  leader  of  the 
Society  for  Ethical  Culture,  Walter  C.  Noyes,  former 
judge  of  the  United  States  Circuit  Court  of  Appeals, 


XIV  INTRODUCTION 

George  W.  Kirchwey,  a  former  Dean  of  the  Columbia 
Law  School,  Henry  Bruere,  the  City  Chamberlain, 
Louis  D.  Brandeis,  the  former  head  of  the  Board  of 
Arbitration,  and  Charles  L.  Bernheimer,  the  chairman 
of  the  Committee  on  Arbitration  of  the  Chamber  of 
Commerce,  the  Protocol  was  revived  for  two  more  years. 

It  was  copied  in  the  dress  and  waist  industry  in  New 
York,  the  clothing  and  cloakmaking  industries  in  Chi- 
cago, the  cloak  and  dress  and  waist  industries  in  Boston 
and  in  Philadelphia.  In  New  York  City  it  was  followed 
also  in  three  other  branches  of  the  needle-working  in- 
dustry— the  misses'  and  children's  wear,  wrappers  and 
kimonos,  and  muslin  underwear. 

Through  Protocol  institutions  for  five  and  a  half 
years  the  cloak  industry  in  New  York  has  been  an  ex- 
periment station  for  new  methods  of  dealing  with  the 
relations  between  employer  and  worker.  In  consequence, 
it  has  been  the  subject  of  scientific  research,  govern- 
mental investigation,*  sanitary  regulation,!  magazine 
composition,  J  and  editorial  comment,  and  every  fresh 
immigrant  who  expects  to  earn  a  living  with  the  aid 
of  a  needle  learns  soon  after  his  arrival  that  the  word 


*  See  Bulletins,  Bureau  of  Labor  Statistics,  Department  of  Labor, 
Nos.  98,  144,  14s,  146,  147. 

t  See  Reports,  Joint  Board  of  Sanitary  Control.  See  Sanitary  Con- 
trol of  an  Industry  by  Itself  by  L.  D,  Wald,  Report  of  International 
Congress  of  Hygiene  and  Demography,  1913. 

t  Munsey,  July,  19 13;  Survey,  February  i,  19 13. 


INTRODUCTION  XV 

"Protocol"  spells  something  new  and  mystical  in  the 
industrial  worid.  What  is  it?  How  came  it  about? 
What  lessons  can  be  garnered  from  its  experience?  These 
are  the  questions  to  which  some  answer,  more  or  less 
incomplete,  may  be  found  in  the  pages  to  follow. 

There  has  been  much  dissatisfaction  with  the  work 
of  the  Federal  Industrial  Relations  Commission.  But 
in  the  testimony  and  reports  (including  those  of  the 
special  investigators)  will  be  found  material  which  it 
is  safe  to  predict  will  be  drawn  upon  for  many  years  to 
come  by  students  and  legislators.  Though  here  in  the 
efifete  east,  we  dispose  of  the  entire  work  of  the  Com- 
mission when  we  satisfy  ourselves  that  the  chairman's 
judicial  poise  and  temperament  have  disappeared — 
though  he  himself  is  authority  for  the  statement  that 
he  never  possessed  any — yet  congressmen  will  find  plenty 
of  material  upon  which  to  erect  statutory  proposals  and 
fill  volumes  of  Congressional  Records  with  debate. 

One  contribution  the  Commission  has  already  made. 
After  careful  study,  the  Commission  is  unanimous  in 
finding  that  the  best  hope  for  future  industrial  peace 
lies  in  the  direction  of  trades  unions  working  with  em- 
ployers' associations  in  joint  agreements — collective 
bargaining,  so  called.  Through  this  method  all  agree 
we  shall  arrive  at  a  better  industrial  day,  meet  the  real 
causes  of  industrial  unrest,  check  abuse  of  power  by  em- 
ployer and  worker  and  bring  order  out  of  chaos. 


xvi  INTRODUCTION 

The  Commission's  report  contains  the  following: 

We  beheve  that  collective  bargaining  and  joint  agree- 
ments are  preferable  to  individual  bargaining,  and  we 
believe  that  the  general  public  should  support  the  unions 
in  their  efforts  to  secure  collective  agreements.  But  this 
can  only  be  done  through  the  influence  of  pubhc  opinion 
without  the  force  of  law.  It  is  based  on  the  conclusion 
that  two  opposing  organizations,  equally  strong,  are  able 
to  drive  out  abuses  practiced  by  the  other.* 

The  employers  on  the  Commission  (Ballard,  Wein- 
stock  and  Aishton)  say  that  as  representatives  of  em- 
ployers they  agree  with  the  members  of  the  Commission 
who  represent  the  general  pubhc  and  also  with  those 
representing  organized  labor  "in  beHeving  that  under 
modern  industrial  conditions,  collective  bargaining, 
when  fairly  and  properly  conducted,  is  conducive  to 
the  best  good  of  the  employer,  the  worker,  and  society."! 

But  the  work  of  the  Commission  is  thoroughly  disap- 
pointing to  those  who  have  passed  the  elementary  grades 
of  education  in  the  problem  of  industrial  disputes.  No- 
where is  the  material  so  collated  or  put  together  that 
the  American  people  (meaning  thereby  the  American 
employer,  the  American  worker,  and  the  American 
consumer)  can  form  an  intelligent  judgment. 

The  Commission  itself  says  that  though  public  opinion 

*  Report  of  Federal  Commission  on  Industrial  Relations  (1915),  p.  375. 
t  Id.,  p.  414. 


INTRODUCTION  xvii 

practically  decides  who  shall  win,  where  both  sides  are 
fairly  well  balanced  in  strength  "such  pubHc  opinion, 
however,  to  be  of  value,  must  be  enlightened.  Under 
prevailing  conditions  this  is  almost  impossible.  All 
that  the  public  is  now  able  to  get,  as  a  rule,  are  garbled 
and  ex  parte  statements,  more  or  less  misleading  and 
unreUable,  which  simply  tend  to  confuse  the  public 
mind."  *  The  crying  need  for  definite  information  on 
the  actual  workings  of  collective  bargaining,  its  strength, 
its  weaknesses,  is  not  met  by  any  of  the  reports  of  the 
Commission.  It  has  failed  to  meet  the  expectations 
of  those  who  hoped  to  get  a  reliable,  unbiased  survey, 
such  as  one  finds  in  the  report  of  the  Industrial  Council 
of  Great  Britain. f 

The  majority  report  (Manly- Walsh-Lennon-O'Con- 
nell-Garretson)  says: 

The  fundamental  question  for  the  Nation  to  decide, 
for  in  the  end  public  opinion  will  control  here  as  else- 
where, is  whether  the  workers  shall  have  an  effective 
means  of  adjusting  their  grievances,  improving  their 
condition,  and  securing  their  hberty,  through  negotiation 
with  their  employers,  or  whether  they  shall  be  driven  by 
necessity  and  oppression  to  the  extreme  of  revolt. f 

*  Report  of  Federal  Commission  on  Industrial  Relations  (1915), 
pp.  409,  410. 

t  Reprinted  as  Bulletin  No.  133,  U.  S.  Department  of  Labor. 

X  Report  of  Federal  Commission  on  Industrial  Relations  (1915), 
p.  89. 


xviii  INTRODUCTION 

But  suppose  you  have  the  fullest  acceptance  of  the 
principle  and  theory  of  collective  bargaining?  Suppose 
you  have  the  two  trade  organizations,  employers'  asso- 
ciation and  union,  working  together,  suppose  there  is 
the  fullest  opportunity  to  adjust  grievances,  inhibition 
against  strikes  and  lockouts,  the  fullest  and  frankest 
"recognition  of  the  union."  What  then?  Does  it  work? 
If  it  does,  how?  If  it  does  not,  why?  What  are  the 
failures  as  well  as  the  successes?  What  happens  if  for 
the  time  being  either  organization  is  stronger  than  the 
other?  Are  there  abuses  of  power?  Where?  Where 
does  the  public  benefit?  Where  is  it  hurt?  What  should 
the  public  do  about  it?  These  questions  the  Commission 
has  failed  to  answer.  If  experience  is  the  best,  if  not 
the  only  lamp  to  guide  one's  feet,  perhaps  an  intensive 
study  of  five  years'  actual  experience  in  one  industry 
may  answer  these  questions. 


LAW  AND  ORDER  IN  INDUSTRY 


LAW  AND  ORDER  IN   INDUSTRY 
CHAPTER  I 

ANARCHY 

In  1907  I  received  my  introduction  to  the  cloak  and 
suit  industry  of  New  York.  At  that  time,  during  the 
lunch  hour  Fifth  Avenue  presented  a  remarkable  sight. 
Where  once  ladies  and  gentlemen  of  fashion  promenaded, 
workingmen  and  women,  showing  unmistakable  evidence 
of  newness  to  the  ways  of  the  country,  crowded  the  pave- 
ments and  the  center  of  the  highway.  An  eagerness  for 
a  breath  of  fresh  air  and  a  sight  of  the  shop  windows 
brought  about  a  condition  ruinous  to  the  department 
stores  which  had  long  prospered  upon  that  avenue.  Al- 
ready realty  owners  along  the  street  had  hung  out  signals 
of  distress.  The  change  in  Fifth  Avenue  below  Twenty- 
third  Street,  now  so  pathetically  disclosed  in  vacant 
buildings  and  *'To  Let"  signs,  was  then  in  process. 

In  the  hope  of  alleviating  what  seemed  to  be  an  in- 
excusable and  remediable  condition  of  affairs,  an  asso- 
ciation of  Fifth  Avenue  business  men  prevailed  upon 
some  of  the  factory  employers  to  endeavor  to  change 
the  lunch  hour  of  the  working  people.    One  of  the  leading 


2  LAW  AND   ORDER  IN  INDUSTRY 

cloak  manufacturers  on  Fifth  Avenue  succumbed  and 
issued  an  order  to  the  workers  that  the  hour  for  luncheon 
would  thereafter  begin  earlier  than  usual.  The  Czar 
in  Russia  never  did  worse!  Without  consulting  them, 
in  a  free  country,  the  employer  had  actually  interfered 
with  the  inalienable  right  of  the  toilers  to  eat  between 
twelve  and  one  o'clock  and  to  go  upon  Fifth  Avenue 
whenever  the  ten  minutes  they  used  for  food  had  ex- 
pired! 

The  strike  that  followed  this  effort  to  redeem  Fifth 
Avenue  necessitated  the  services  of  a  lawyer  for  the  em- 
ployer. It  was  my  introduction  to  the  Industrial 
Workers  of  the  World  and  anarchy  in  industry.  One  of 
the  circulars  then  distributed  by  the  workers  was  headed 
in  big  red  letters:  "War!  War!  War!"  After  weeks  of 
effort  in  the  police  courts  and  with  the  District  Attorney, 
we  were  obliged  to  present  the  matter  to  the  Supreme 
Court  of  the  county.  An  able  and  fair  judge  wrote, 
upon  the  basis  of  the  evidence  we  presented  to  him,  the 
following: 

It  is  evident  that  instead  of  a  manly,  self-respecting 
demand  to  right  a  grievance,  whether  real  or  believed  to 
be  such,  fortified  by  reason  and  argument,  methods  have 
been  employed  by  the  defendants  that  are  un-American, 
intolerable,  abhorrent  to  all  ideas  of  personal  hberty 
and  in  defiance  of  the  right  of  the  individual  to  determine 
for  himself  under  what  conditions  he  prefers  to  labor. 
Every  individual  is  free  to  exercise  any  lawful  calling 


ANARCHY  3 

without  being  subjected  to  acts  of  terrorism  by  those 
who  are  not  in  accord  with  his  conception  of  the  manner 
in  which  he  is  pursuing  his  vocation.* 

So  far  as  pubUc  sympathy  was  concerned,  it  went  to 
the  side  of  the  strikers.  The  magistrates  before  whom 
the  assault  cases  were  brought  rarely  punished,  and  if 
they  punished,  fined  lightly.  The  District  Attorney's 
ofl&ce  did  its  best, — which  was  very  Httle.  The  PoHce 
Department  responded,  but  infrequently.  And  when  the 
strike  was  all  over,  the  employer  had  scored  "a  great 
victory."  He  had  beaten  the  working  people  into  sub- 
mission. It  had  cost  him  a  pretty  penny,  but  he  had 
won.  He  paid  his  lawyer's  bill  with  a  little  feeling  that 
it  was  a  charge  against  loss  rather  than  a  credit  to  profit, 
but,  nevertheless,  he  had  won.  We  both  learned  that 
a  single  employer  fighting  a  mass  of  work-people,  with 
public  opinion  against  him  from  the  very  outset,  is  at  a 
great  disadvantage;  and,  more  important  still,  we  learned 
that  the  machinery  of  the  law  is  wholly  inadequate  to 
meet  such  situations. 

I  advised  the  formation  of  an  association  of  employers. 
I  was  told  that  it  was  impossible.  Why?  The  cloak 
manufacturers  could  never  agree  upon  anything,  and  if 
they  did,  they  would  not  live  up  to  their  agreements. 
I  had  rarely  seen  so  much  distrust,  outside  of  politics. 

*  A.  Beller  &  Co.  v.  Garment  Workers'  Union,  Local  No.  6i,  Industrial 
Workers  of  the  World  et  al.,  New  York  Law  Journal,  March  27,  1907. 


4  LAW  AND   ORDER  IN  INDUSTRY 

Apparently  not  even  an  enlightened  self-interest  could 
induce  competitors  to  sit  down  with  each  other  and 
agree  upon  a  plan  for  cooperation  in  business.  The 
advice  went  for  naught.  Anarchy  on  the  workers'  side 
was  matched  by  anarchy  on  the  employers'  side.  The 
difference  was  one  of  kind  and  degree.  In  the  case  of 
the  employers  it  was  anarchy  in  the  sense  of  lawlessness 
in  their  competition  with  each  other  and  in  their  un- 
wilHngness  to  abide  by  the  rules  of  their  own  making. 
But  at  least  the  workers  knew  one  thing  that  the  em- 
ployers did  not.  The  Yiddish  and  ItaHan  press  had 
put  it  before  them  daily  in  big  red  headlines,  and  it  had 
been  dinned  into  their  ears  night  and  day  by  enthu- 
siastic leaders.  It  was  the  simple  lesson  of  organized 
collective  dealing  with  industrial  problems.  In  1907, 
1908,  and  1909  a  union  of  cloak  manufacturers  was 
something  to  poke  fun  at.  Around  the  Hoffman  House 
tables  the  lunch-hour  statesmen  smoked  their  cigars 
and  gave  their  final  and  conclusive  verdict.  "A  beauti- 
ful dream.  Who  but  a  lawyer  would  think  it  practica- 
ble?" 

But  there  were  many  ferments  in  the  pot.  In  her 
story  of  the  Henry  Street  Settlement  Miss  Lillian  Wald* 
has  given  us  the  inner  history  of  the  beginnings  of  the 
East  Side  socialistic  and  trades  union  movement  in  the 
garment  industry.     The  trade  union  does  not  owe  its 

*  "The  House  on  Henry  Street." 


ANARCHY  5 

origin  to  the  decent  employer,  considerate  of  the  well- 
being  of  the  workers  in  his  shop.  The  real  propagandist 
for  trade  unionism  is  the  employer  who  is  not  yet  past 
the  kindergarten  stage  of  shop  moraHty.  He  furnishes 
the  material  for  such  stories  as  "Comrade  Yetta."  He 
Hterally  makes  the  existence  of  a  trade  union  possible, 
for  without  him  there  would  be  no  union.  His  grasping, 
his  tyranny,  his  indifference  to  the  ordinary  human 
rights  of  working  men  and  women  make  the  basis  of 
factory  laws,  industrial  commissions,  and  clear  the  field 
for  I.  W.  W.  radicals.  These  men  at  least  earn  our 
gratitude  in  one  respect;  they  breed  their  own  cure. 
W.  J.  Davis,  President  of  the  Trade  Union  Congress 
in  Great  Britain  held  in  1914,  said: 

Trade  unionism  took  its  rise  more  from  the  employer 
than  the  labor  leader.  It  came  from  the  unjust  employ- 
ers, who,  not  satisfied  with  unfair  conditions,  placed 
indignity  after  indignity  on  the  worker  until  one  of  their 
number  had  the  pluck  to  rebel,  and  who,  by  the  timid 
murmurings  of  the  opprest,  was  secretly  proclaimed  a 
leader.  By  common  consent  of  the  employers,  and  as 
they  or  their  friends  made  and  administered  the  laws, 
he  was  persecuted.  The  persecution,  however,  instead  of 
annihilating  the  leader,  produced  leaders. 

In  the  manufacture  of  women's  garments  in  New 
York  City  were  men  of  fine  culture,  fine  sensibiHty, 
broad  and  Hberal  training,  who  had  come  to  the  top 
through  their  sheer  innate  intellectual  and  artistic  ability. 


6  LAW  AND  ORDER  IN  INDUSTRY 

These  men  scorned  to  treat  their  working  people  iin- 
humanely.  Many  are  the  stories  that  could  be  told  of 
their  interest  in  the  personal  lives  of  men  and  women 
in  their  employ.  But,  unfortunately,  in  their  trade  as 
in  our  profession,  there  are  men  of  different  standards 
working  side  by  side,  and  there  was  no  way  of  separating 
the  sheep  from  the  goats.  That  there  were  grievances 
on  the  part  of  the  workers  in  the  industry  was  beyond 
question.  That  they  had  tried  to  redress  these  grievances 
and  had  failed  was  equally  beyond  question.  It  was 
an  industry  of  intermittent  strikes.  The  cure  for  any- 
thing wrong  was  the  strike.  It  was  the  workingman's 
panacea  for  all  his  ills.  During  the  busy  season  the 
workers  had  the  boss  by  the  throat.  During  the  slack 
season  he  reciprocated  and  turned  the  tables  on  them. 
The  merry  game  went  on,  each  side  lying  in  wait  for 
the  other.  Employers  freely  signed  contracts  with  the 
union,  guaranteeing  fine  wages  and  good  conditions. 
The  ink  was  scarcely  dry  before  they  became  mere 
scraps  of  paper.  The  new  standards  were  secured  at 
great  sacrifice.  During  a  strike  the  working  people 
were  enthusiastic  union  members,  literally  ready  to  die 
for  their  union.  As  soon  as  the  paper  was  signed  and 
peace  was  declared,  they  lost  interest,  failed  to  pay 
dues  to  their  union,  failed  to  attend  meetings,  and  the 
union  lapsed  into  decay,  to  be  revived  only  through 
another  strike. 


ANARCHY  7 

A  few  of  the  leaders  had  grasped  the  philosophy  of 
collective  dealing  and  had  some  background  of  knowledge 
of  trades  unionism  generally,  but  so  far  as  the  masses 
of  the  workers  were  concerned  progress  was  made  by 
explosion — not  carefully  controlled,  as  in  a  motor  engine, 
but  as  highstrung,  emotional  men  are  impelled, — for- 
ward, then  back,  then  sidewise,  with  much  waste  of 
fuel  and  oil  and  very  little  mileage.  Gradually  the 
leaders  learned  through  bitter  experience  the  lesson  men 
learn  only  through  bitter  experience — that  power,  how- 
ever great,  applied  without  moral  intelHgence,  is  worse 
than  useless  because  it  is  dangerous.  An  automobile 
with  no  steering  gear  or  brake  will  speedily  bring  destruc- 
tion to  passengers  and  driver.  With  steering  gear  and 
brake,  but  under  control  of  a  headless  chauffeur,  it  is 
still  a  dangerous  animal.  Little  by  Httle  the  influence 
of  reason  made  itself  felt  in  the  union.  There  was  less 
action  and  more  thought.  There  was  planning,  looking 
ahead. 

One  hot  day,  at  the  beginning  of  July,  1910,  I  was 
walking  up  Fifth  Avenue  when  a  friend  handed  me  a 
circular  printed  in  Yiddish.  "You  will  be  called  into 
action  very  soon,"  he  said.  It  was  the  circular  distrib- 
uted that  very  day,  calling  upon  all  of  the  workers  in 
the  trade  to  turn  out  in  a  general  strike.  Within  a  day 
or  two  I  was  summoned  to  attend  a  conference  of  leading 
manufacturers,  who  had  decided  to  form  a  protective 


8  LAW  AND  ORDER  IN  INDUSTRY 

employers'  association.  The  time  was  now  ripe  for  an 
organization  of  employers.  The  experience  of  my  one 
client  in  1907  had  been  matched  by  others.  It  is  true 
the  lunch-hour  statesmen  looked  dubious  and  freely 
prophesied  failure.  But  a  condition  confronted  the 
employers  en  masse.  A  union,  a  strong  union,  had  been 
bom.  To  meet  such  a  union  a  strong  employers'  organi- 
zation was  necessary.  The  value  of  an  organization 
of  employers  was  now  clearly  apprehended.  But  organi- 
zation for  what  purpose?  Organization  to  be  pitted 
against  organization,  union  against  association,  associa- 
tion against  union.  The  dominant  thought  in  the  mind 
of  the  Union  was  to  wrest  power  from  the  employer. 
The  first  thought  in  the  minds  of  the  employers  was  to 
restrain  aggression.  So  far  as  could  be  observed,  only  a 
handful  beheved  in  the  practicability  of  organizing 
the  industry  itself,  regulating  the  power  of  both  organiza- 
tions and  making  possible  cooperation  between  them. 

The  fight  was  bitter,  intensified  by  the  stakes  at  issue 
and  by  the  feeling  on  both  sides  that  each  was  fighting 
for  its  very  hfe.  Again  the  machinery  of  the  law  broke 
down.  There  were  assaults.  There  was  riot.  Again 
there  was  a  resort  to  the  courts.  Another  judge,  pass- 
ing upon  the  facts,  ruled  that  the  violence  must  cease: 

In  aid  of  their  purpose,  defendants  have  employed 
illegal  means.  From  the  inception  of  the  strike  until  the 
present  day,  members  of  the  unions  who  were  formerly 


ANARCHY  9 

employees  of  members  of  plaintiff's  association  have 
interfered  with  the  business  of  the  manufacturers  by 
forcible  entry  of  the  shops  and  destruction  of  property 
therein,  assaults  and  batteries  of  a  serious  nature  upon 
employees  who  refused  to  stop  work,  threats  to  em- 
ployees who  were  not  unionists  to  beat  or  kill  them, 
similar  threats  to  wives  and  members  of  the  families  of 
such  employees,  use  of  opprobrious  epithets  and  picket- 
ing the  streets  with  unruly  throngs.  At  large  expense, 
the  manufacturers  have  been  obliged  to  hire  guards  to 
conduct  their  employees  to  and  from  their  homes  or  to 
provide  sleeping  accommodations  for  them  in  their 
shops.  These  facts  are  fully  attested  by  over  fifty 
affidavits  of  employees  and  manufacturers  who  have  been 
threatened  or  whose  places  of  business  have  been  for- 
cibly entered  and  by  the  record  of  testimony  in  police 
courts.  .  .  .* 

The  story  is  not  a  story  Hmited  to  the  cloak  industry, 
nor  to  New  York  City.    The  Mayor  of  Cleveland  writes: 

As  each  strike  occurs,  an  opportunist  poHcy  is  adopted 
by  the  police  authorities.  Things  are  tided  along  without 
any  clear  aim  or  method  and  without  any  tribunal  that 
can  determine  the  right  and  wrong  of  questions  involved, 
until  somebody  is  killed  or  a  serious  riot  threatens  the 
destruction  of  property.  Then  pubUc  opinion  momen- 
tarily clarifies;  we  all  agree  that  we  do  not  want  such 
things,  no  matter  what  happens,  and  the  poHce  now  have 
a  steadied  sentiment  to  support  them;  the  trouble  is 
over.    Until  this  heahng  incident  has  arisen  out  of  the 

*  Schwarcz  v.  International  Ladies'  Garment  Workers'  Union,  68 
Misc.  (N.  Y.)  528;  (535,  536,  537). 


lO  LAW  AND   ORDER   IN  INDUSTRY 

troubled  waters,  about  all  the  police  can  do  is  to  repress 
the  more  serious  disturbances.  In  the  surging  violence 
of  sentiment  which  surrounds  a  strike  when  the  men 
begin  to  get  desperate,  the  police  are  fortunate  if  they 
can  prevent  assaults  and  the  destruction  of  property; 
they  are  powerless  to  allay  the  fierce  outbursts  of  emo- 
tion which  stir  the  participants  and  lead  them  to  law- 
lessness.* 

The  president  of  the  Employers'  Association  of  Mas- 
sachusetts, writing  on  "Conditions  Fundamental  to 
Industrial  Peace,"  says: 

.  .  .  government  under  our  present  system  cannot  be 
relied  upon  as  a  compelhng  force  to  insure  justice  and 
protect  the  individual  and  the  law-abiding  community 
when  corporate  capital  and  organized  labor  are  at  war.f 

A  close  friend  of  trades  unions  writes  that  "A  plea 
of  trades  unions  for  immunity,  be  it  from  injunction  or 
from  liabiHty  for  damages,  is  as  fallacious  as  the  plea 
of  the  lynchers."  t  And  Ex-President  Taft  is  of  opinion 
that  trades  unions  have  failed  to  "condemn  in  any  way, 
as  they  ought,  the  use  of  criminal  methods  to  which 
in  a  lawless  spirit  their  representatives  at  various  times 

*  Newton  D.  Baker:  Law,  Police,  and  Social  Problems,  Atlantic 
Monthly,  July  iQis,  p.  17. 

t  George  B.  Hugo:  Conditions  Fundamental  to  Industrial  Peace,  The 
Annals  of  the  American  Academy  of  Political  and  Social  Science,  Nov., 
1912,  p.  22. 

I  Louis  D.  Brandeis:  Arbitration,  The  Mediator,  Aug.  20, 1915,  p.  11. 


ANARCHY  II 

have  seen  fit  to  resort."  *  The  employers  on  the  Federal 
Industrial  Relations  Commission  were  satisfied  from 
the  testimony  before  them  that  one  of  the  main  reasons 
for  the  opposition  of  employers  to  unionism  is  "the 
resort  on  the  part  of  unionists  to  violence  in  labor  trou- 
bles, and  to  the  fact  that  unionists  condone  such  violence 
when  committed  in  the  alleged  interest  of  labor."  f 
The  representatives  of  labor  on  the  Commission  reply 
to  this  criticism  by  way  of  "confession  and  avoidance" 
(as  we  lawyers  say):  'The  union,  fighting  for  its  right 
to  five,  is  sometimes  forced  to  tolerate  acts  that  would 
not  be  countenanced  if  its  entity  were  secure  and  its 
energies  were  not  absorbed  in  fighting  for  existence."  J 
And  the  representatives  of  the  pubHc  on  the  Commission 
say  that  the  strikes  accompanied  by  bloodshed,  and 
attracting  the  attention  of  the  country  for  the  past 
quarter  of  a  century  "have  been  revolutions  against 
industrial  oppression,  and  not  mere  strikes  for  the  im- 
provements of  working  conditions."  And  they  list  as 
such  "revolutions"  the  railway  strike  of  the  late  eighties, 
the  Homestead  strike,  the  bituminous  coal  strike  of 
1897,  the  anthracite  strikes  of  1900  and  1903,  the  McKees 
Rocks  strike  in  1909,  the  Bethlehem  strike  in  1910,  the 

*  William  Howard  Taft  in  speech  before  the  National  Association  of 
Manufacturers,  May  26,  1915. 

t  Report  of  Federal  Commission  on  Industrial  Relations  (1915), 
p.  428. 

t  Id,   p.  280. 


12  LAW  AND  ORDER  IN  INDUSTRY 

strikes  of  the  textile  workers  in  Lawrence,  Paterson  and 
Little  Falls,  the  strikes  in  the  mining  camps  of  Idaho, 
Colorado,  West  Virginia,  Westmoreland  Co.,  Pa.,  and 
Calumet,  Mich.,  and  also  "the  garment  workers'  strikes 
in  New  York  and  other  cities."  * 

Apparently,  the  representatives  of  the  pubhc  upon  the 
Federal  Lidustrial  Relations  Commission  believe  that 
by  calling  a  strike  a  "revolution"  violence  and  law- 
breaking  are  excused. 

A  recent  writer  finds  in  the  lessons  of  the  lynching 
of  Leo  Frank  a  striking  analogy  between  that  kind  of 
law-breaking  and  the  kind  of  law-breaking  in  the  case 
of  labor  disputes.  He  finds  in  both  an  attitude  towards 
the  law  symptomatic  of  "a  besetting  weakness  of  the 
American  democracy,"  and  that  "back  of  the  physical 
violence  and  lawlessness  is  an  insidious  and  dangerous 
moral  disorder."  From  eight  years'  observation  and 
study,  I  am  convinced  that  his  conclusion  is  accurate: 
"The  inability  of  American  State  governments  in  the 
case  of  labor  disputes  to  protect  either  the  strikers  or 
the  employers  against  organized  disorder  is  notorious."  f 
The  Mayor  of  Cleveland  has  come  very  close  to  finding 
the  real  cause.  He  finds  first  of  all  that  the  state  of  the 
public  mind  during  the  violence  is   'confused  and  hesi- 

*  Report  of  Federal   Commission  on  Industrial   Relations   (1915), 
p.  89. 
t  Georgia  and  the  Nation,  The  Nemo  Republic,  Sept.  4,  1915,  p.  113. 


ANARCHY  13 

tant."  The  public  sits  by,  "blaming  one  side  or  the 
other  on  such  hali  information  or  interest  as  we  may 
have,  or  wondering  what  ought  to  be  done  about  it.  .  .  . 
We  do  not  like  violence,  but  somehow  this  seems  to  us 
excusable  violence,  if  it  be  not  too  violent."  We  have 
not  yet  come  to  realize  that  there  is  "a  social  loss  with 
just  so  much  human  labor  and  wealth  gone  and  so  much 
less  wealth  produced,"  and  that  "labor  loses  not  only 
the  battles  it  ought  to  lose  but  many  it  ought  to  win." 
And  he  makes  the  further  observation  that  "the  result, 
no  matter  what  it  is,  rests  upon  no  higher  sanction  than 
force,  and  therefore  lacks  stability  and  will  last  only 
until  one  side  or  the  other  feels  strong  enough  to  renew 
the  struggle."  * 

The  Mayor  of  Cleveland  wrote  in  191 5.  What  he 
said  was  said  in  19 10,  is  still  said,  and  said  over  and  over 
again.  But  where  is  the  way  out?  Must  there  be  vio- 
lence always  accompanying  labor  disputes?  Is  it  "revo- 
lution?" We  met  these  questions  face  to  face  in  1910 
and  met  them  over  again  in  the  years  following. 

*  Newton  D.  Baker:  Law,  Police  and  Social  Problems,  Atlantic 
Monthly,  July,  1915,  p.  17. 


CHAPTER  II 


THE   CLOSED   SHOP 


The  general  strike  was  called  without  notice  to  the 
employers  and  without  presentation  of  the  customary- 
list  of  grievances.  All  that  the  employers  knew  was  that 
an  order  to  strike  had  been  issued,  military  fashion, 
to  all  of  the  factory  workers,  and  that  subsequently 
each  employer  had  received  in  the  mails  a  form  of  con- 
tract which,  in  legal  and  moral  effect,  meant  to  him  the 
surrender  of  the  control  of  his  factory  to  the  union. 
This  contract  contained  the  following  remarkable  clause : 

I.  The  said  Firm  hereby  engages  the  Union  to  perform 
all  the  tailoring,  operating,  pressing,  finishing,  cutting 
and  buttonhole  making  work  required  to  be  done  by  the 
Firm  in  its  cloak  and  suit  business,  during  the  period 
commencing  with  the  date  of  this  agreement  and  ter- 
minating one  year  from  date,  and  the  Union  agrees  to 
perform  said  work  in  a  good  and  workmanlike  manner. 

The  New  York  Times,  commenting  upon  this  contract, 
said:  "The  proposed  agreement  of  the  Cloakmakers' 
Union  is  a  reminder  of  the  padrone  system."  *  The 
great  number  of  people  involved  in  the  strike — ^it  was 

*  New  York  Times,  July  i6,  1910. 
14 


THE  CLOSED   SHOP  15 

said  sixty  thousand  went  out  for  ten  weeks — its  sudden- 
ness, gave  it  a  dramatic  flavor  entitling  it  to  a  place  on 
the  first  page  of  the  newspapers.  In  our  newsgathering 
nothing  becomes  really  important  in  the  nature  of  a 
labor  dispute  until  there  is  a  lockout  or  a  strike,  and 
the  situation  becomes  a  real  newspaper  "story"  only 
when  some  heads  are  smashed  or  a  murder  is  committed. 
But  there  was  more  involved  in  this  particular  strike 
than  in  many  similar  great  strikes.  Employer  and 
worker  in  this  industry  were  bound  together  by  ties 
of  race  association  and  tradition  not  easily  broken. 
There  was  real  intelligence  and  sincerity  on  both  sides 
and  a  fundamental  basis  of  agreement,  hidden,  of  course, 
by  the  noise  and  the  turmoil  upon  the  surface.  What 
were  the  real  differences?  Very  soon  after  the  organiza- 
tion of  the  Employers'  Protective  Association  each  mem- 
ber pledged  himself: 

That  to  the  utmost  of  his  abiHty,  with  the  assistance  of 
the  Executive  Committee,  he  will  endeavor  to  adjust  all 
shop  grievances  his  employees  may  have. 

I  can  testify  from  personal  knowledge  that  the  leaders 
of  the  Association  were  as  earnest  and  genuine  in  their 
desire  to  eliminate  the  real  grievances  of  the  workers 
in  the  industry  as  were  the  leaders  of  the  Union.  They 
resented  the  indiscriminate  abuse  that  had  been  heaped 
upon  the  entire  industry.    They  felt  keenly  the  injustice 


i6  LAW  AND  ORDER  IN  INDUSTRY 

of  classing  sheep  with  goats.  And  there  was  a  very  deep- 
seated  determination  that  out  of  the  strike  should  come 
something  that  would  justify  its  cost.  There  was  a 
definite  and  courageous  determination  to  put  the  indus- 
try upon  a  higher  plane  and  to  make  of  the  business  at 
least  something  which  would  not  make  the  employer 
shamefaced  when  admitting  to  his  neighbors  or  to  his 
children  that  he  was  a  cloak  manufacturer.  In  the 
private  executive  sessions  of  the  employers'  association 
I  have  heard  the  president  say  repeatedly  that  the  asso- 
ciation stood  for  justice  to  the  workers  as  well  as  to 
its  own  members,  and  that  the  efforts  of  its  officers 
would  be  fruitless  unless  the  industry  were  raised  to  a 
higher  plane  as  the  result  of  this  crisis. 

If  justice  and  a  higher  order  of  industry  were  the 
objective  points  for  both  workers'  union  and  employers' 
association,  why,  then,  a  bitter  conflict  involving  great 
loss  and  sacrifice?  This  was  the  rock-bottom  question. 
A  few  men,  disinterested  and  impartial,  putting  this 
question  to  both  sides,  learned  that  there  was  a  basis 
for  peace  and  order  if  both  sides  could  be  gotten  to- 
gether. In  August,  1 910,  however,  the  situation  was 
this:  a  single  issue  precluded  conference  between  the 
parties.  At  that  time  the  union  leaders  genuinely  be- 
heved  that  no  matter  what  agreement  was  arrived  at 
between  the  employers  and  the  union,  unless  the  union 
controlled  the  supply  of  labor  it  would  go  to  pieces  and 


THE  CLOSED  SHOP  17 

the  standards  would  break.  Accordingly,  the  ^^ closed 
shop,''  i.  e.,  a  shop  in  which  none  but  union  men  should 
be  employed,  was  to  them  a  matter  of  vital  principle; 
and  so  thoroughly  convinced  were  they  on  this  score 
that  they  made  every  other  issue  subordinate.  In  their 
publicity  campaign  they  had  made  much  of  the  un- 
sanitary conditions  of  the  shops,  the  long  hours,  the 
low  wages,  the  exacting  of  deposits,  the  tenement  house 
labor,  and  the  rest,  but  what  they  fought  for  more  than 
anything  else  was  "recognition  of  the  imion,"  which 
to  them  meant  the  "closed  shop."  To  the  employer, 
also,  it  was  a  matter  of  principle.  He  carried  the  re- 
sponsibility for  running  his  enterprise.  He  knew  he 
could  not  run  it  without  freedom  to  select  his  employees. 
To  him  the  "closed  shop"  meant  abdication.  It  spelt 
ruin. 

The  two  parties  were  kept  from  each  other  by  this 
apparently  impassable  barrier.  In  August,  1910,  it 
seemed  impossible  to  bring  them  nearer  together.  To 
Mr.  Louis  D,  Brandeis  is  due  entirely  the  credit  of  cut- 
ting this  Gordian  knot.  Through  the  influence  of  friends 
of  the  union,  he  was  called  in  to  advise  them.  He  ad- 
vised them  to  waive  the  demand  for  the  closed  shop  and 
to  present  in  writing  to  the  manufacturers  their  griev- 
ances and  to  ask  for  a  conference  (having  first  learned 
through  diplomatic  sources  that  once  the  barrier  was 
removed   such   a   conference   was   practicable).     Mr. 


i8  LAW  AND  ORDER  IN  INDUSTRY 

Brandeis  secured  in  the  early  hours  of  a  midnight  session 
with  the  executive  officers  of  the  Union  authority  to 
assure  me,  on  behalf  of  the  manufacturers,  that  the 
issue  of  the  closed  shop  was  eliminated.  In  his  letter  to 
me  he  wrote:  "All  of  these  officers  understand  fully 
that  under  this  proposal  the  closed  shop  is  not  a  subject 
which  can  be  discussed  at  the  conference."  It  was  a 
great  pleasure  to  join  with  Mr.  London,  the  counsel 
for  the  Union,  a  few  days  later  in  inviting  Mr.  Brandeis 
to  preside  over  the  conference  which  followed.  It  lasted 
for  five  days.  The  grievances  presented  by  the  Union's 
representatives  were  briefly  the  following: 

Low  wages. 

Unreasonable  night  work. 

Work  in  tenement  houses. 

Disregarding  of  holidays  and  Sundays. 

Sub-contracting. 

Discrimination  against  union  men. 

Irregular  payment  of  wages. 

Extracting  of  security. 

Charging  for  material  and  electricity. 

Blacklisting  of  active  union  men. 
At  first  both  sides  approached  each  other  with  a  very 
marked  feeling  of  distrust.  Gradually  a  better  attitude 
of  reasonableness  prevailed.  Step  by  step  the  minds 
of  the  parties  were  brought  together.  The  Hberal  atti- 
tude of  the  leaders  on  the  manufacturers'  side,  which 


THE   CLOSED   SHOP  19 

was  only  known  to  those  who  were  in  their  confidence, 
now  came  out  into  the  open.  Indeed,  such  criticism  of 
their  work  as  came  in  later  days  was  based  upon  the 
score  that  in  August,  19 10,  they  had  been  too  ready  to 
agree. 

On  the  fifth  day  of  the  conference,  when  practically 
all  other  matters  had  been  disposed  of,  we  were  startled 
to  hear  the  union  representatives  bring  the  closed  shop 
up  again  for  discussion.  Mr.  Brandeis  very  properly 
said: 

I  should  rule  that  the  subject  of  the  closed  shop  could 
not  be  discussed  at  all,  except  with  the  absolute  consent 
of  everyone  who  has  entered  here  into  the  conference, 
because  it  was  expressly  understood,  and  I  gave  my 
assurance  upon  my  own  understanding  of  the  written 
document  which  I  received,  that  that  was  a  subject  which 
could  not  be  brought  up,  and  we  proceeded  wholly  on 
that.* 

Notwithstanding  all  that  had  been  accomphshed  up 
to  this  point,  and  despite  the  authorized  assurance  given 
to  the  manufacturers  by  Mr,  Brandeis,  the  barrier  again 
arose,  huge  and  ominous,  between  the  parties.  It  was 
here  that  in  the  effort  to  bring  them  together,  Mr.  Brand- 
eis suggested  what  afterwards  came  to  be  known  as 
the  "Preferential  Union  Shop."  I  must  confess  that 
I  did  not  agree  with  Mr.  Brandeis  as  to  its  utiHty.   Never- 

*  Minutes  of  Conference,  July  20,  1910. 


20  LAW  AND   ORDER  IN  INDUSTRY 

theless,  I  recommended  to  the  officers  of  the  association 
that  Mr.  Brandeis  and  I  discuss  fully  and  frankly  be- 
fore the  Executive  Board  the  feasibility  of  his  recom- 
mendation. Mr,  Brandeis  argued  one  way.  I  argued 
another,  as  two  lawyers  will,  each  for  his  own  convic- 
tion. Mr.  Brandeis  won  my  clients  over.  On  the  ist  of 
August,  1910, 1  was  authorized  to  submit  to  Mr.  London 
and  to  Mr.  Brandeis  the  following  letter: 

Dear  Mr.  London — Our  conference  this  morning  is 
fraught  with  such  grave  consequences  that  I  believe  such 
matters  as  I  have  to  submit  should  be  reduced  to  writing. 

I  am  prepared  to  join  with  you  in  recommending  to 
our  respective  organizations  the  following  as  their  joint 
understanding  of  the  relations  between  the  two,  to  be 
agreed  upon: 

The  conference  has  developed  that  the  grievances 
complained  of  by  the  Union  can  be  adjusted.  Practically 
every  subject  has  been  agreed  upon,  save  that  of  wages 
and  the  year-round  Saturday  half-hoHday  (instead  of 
during  the  four  summer  months) ,  both  of  which  matters 
the  manufacturers  are  willing  to  leave  to  arbitration. 
A  Joint  Board  of  Sanitary  Control,  composed  of  repre- 
sentatives of  the  Association  and  the  Union  and  the 
public,  will  be  formed,  whose  business  it  will  be  to  estab- 
lish standards  of  sanitary  conditions,  to  investigate  as 
to  the  observance  of  these  conditions,  and  both  parties 
to  the  conference  agree  to  exercise  their  powers  to  the 
fullest  to  enforce  these  standards. 

The  manufacturers  realize  that  to  establish  a  standard 
of  sanitary  conditions,  and  standards  of  wages  and 
hours  throughout  the  industry  it  is  important  that  there 


THE  CLOSED   SHOP  21 

should  be  complete  cooperation  between  their  Associa- 
tion and  the  Union.  They  are,  therefore,  ready  to 
strengthen  the  Union,  if  it  be  but  well  organized  and 
wisely  led.  If  a  complete  agreement  be  now  reached 
upon  these  difficult  and  delicate  matters  it  will  at  once 
estabhsh  confidence  between  the  leaders  of  both  sides. 

The  manufacturers  cannot,  of  course,  surrender  the 
control  and  management  of  their  factories  to  the  Union. 
In  agreeing  to  this  declaration,  the  Union  indicates  that 
it  assents.  The  manufacturers  cannot  coerce  any  one 
into  joining  the  Union;  to  this  the  Union  assents.  The 
manufacturers  cannot  supervise  the  Union's  business. 
The  Union  does  not  ask  that  they  should.  But  the 
manufacturers  can  let  it  be  known  that  they  are  in 
sympathy  with  the  Union,  and  that  as  between  a  Union 
man  and  a  non-union  man  of  equal  ability  to  do  the  job, 
they  will  employ  the  Union  man.  They  cannot  ask  each 
man  seeking  a  job  to  show  his  Union  card,  nor  agree  to 
collect  the  Union  dues.  On  the  other  hand,  they  can  and 
will  (if  this  declaration  be  accepted)  announce  to  all  of 
their  employees  that  they  beheve  in  the  Union  and  that 
all  who  desire  its  benefits  should  share  in  its  burdens. 

In  signing  this  declaration,  the  Union  does  not  seek  the 
"closed  shop"  as  it  is  understood  by  the  manufacturers. 
They  seek  the  "union  shop"  by  which  they  mean,  a  shop 
where  the  majority  of  the  men  employed  are  Union  men, 
and  where  the  employer  is  known  to  be  in  sympathy 
with  the  Union.  It  is  not  intended  that  the  employer 
shall  not  be  free  to  pick  and  choose  his  workers.  But  it 
is  intended  that  if  in  bad  faith,  he  discriminates  against 
Union  men  or  fails  honestly  to  give  preference  to  Union 
men,  then  he  is  not  conducting  a  "Union  shop."  It  is 
done  experimentally,  for  it  has  never  before  been  tried  in 
this  or  any  other  industry.    But  the  manufacturers  be- 


22  LAW  AND  ORDER  IN  INDUSTRY 

lieve  modern  conditions  justify  recognition  of  a  well 
organized  and  disciplined  union  to  this  extent  and  that 
with  good  faith  and  wise  leadership  on  both  sides, 
cooperation  between  the  two  organizations  can  bring 
the  industry  to  a  higher  position  than  it  occupies  even 
at  present. 

On  the  other  hand,  the  Union  recognizes  that  it  cannot 
hope  to  accomplish  this  great  social  result  unless  it  helps 
to  drive  out  of  the  industry  the  sweatshop  "boss,"  the 
tenement  house  worker,  and  the  unscrupulous  manufac- 
turer. 

A  Joint  board  of  arbitration  will  be  established,  upon 
which  representatives  of  the  public  will  be  present.  No 
future  strikes  or  lockouts  will  take  place  until  grievances 
are  first  submitted  to  arbitration.  In  the  saving  of  the 
great  waste  thus  eliminated  both  parties  expect  to  gain 
much. 

I  am  aware  in  submitting  this  proposed  agreement,  it  is 
fraught  with  great  danger  and  that  if  accepted  by  my 
people,  it  goes  "the  limit." 

On  the  other  hand  I  see  nothing  more  that  can  be 
asked  except  the  "closed  shop"  which,  as  you  know,  was 
eliminated  before  we  went  into  conference. 

Please  be  good  enough  to  give  me  your  answer  in 
writing  by  two  o'clock  today. 

On  the  same  day  Mr.  Brandeis  sent  me  the  following 
letter: 

Dear  Sir — Before  submitting  your  letter  of  this 
day  to  Mr.  London,  after  conferring  with  both  you  and 
Mr.  London,  I  suggest  that  you  modify  the  proposed 
declaration  in  the  following  respect: 


THE  CLOSED   SHOP  23 

First.  Let  the  clause  in  the  last  paragraph  on  the  first 
page,  beginning  with  "but  the  manufacturers,"  read: 
"But  the  manufacturers  can  and  will  declare  in  appro- 
priate terms  their  sympathy  with  the  Union,  their  desire 
to  aid  and  strengthen  the  Union,  and  their  agreement 
that  as  between  union  men  and  non-union  men  of  equal 
ability  to  do  the  job,  they  will  employ  the  Union  men." 

Second.  Add  to  the  second  line  of  the  second  page: 
"And  that  the  preference  will  be  given  to  Union  men." 

Third.  Insert  after  the  above:  "The  Union  pledges 
itself  to  accept  into  its  membership  every  applicant  of 
good  character  on  equal  terms  and  keep  its  initiation 
fees  and  dues  at  a  reasonable  rate." 

Fourth.  Substitute  for  the  second  sentence  of  the  first 
paragraph  beginning  on  page  2  "the  majority,  etc.," 
the  following:  "They  seek  the  Union  shop,  by  which 
means  they  mean  a  shop  in  which  Union  standards  pre- 
vail and  the  union  man  is  entitled  to  the  preference." 

With  these  changes  I  am  prepared  to  join  with  you  in 
recommending  the  acceptance  of  the  proposal. 

At  the  end  I  wrote  "I  accept  your  modifications." 

But  this  modus  vivendi  proved  to  be  unacceptable  to 
the  union.  There  can  be  no  question  as  to  the  sincerity 
of  the  leaders  of  the  union.  They  were  all,  personally, 
brave,  self-sacrificing  men.  But  unfortunately  they 
had  created  a  Frankenstein.  To  have  gone  back  and 
told  the  mass  of  the  working  people  that  they  had  won 
everything  but  the  closed  shop  seemed  to  them  im- 
possible. In  consequence,  the  conferences  broke  up. 
The  strike  was  renewed.    More  heads  were  smashed, 


24  LAW  AND  ORDER  IN  INDUSTRY 

more  shops  stopped  work,  more  shops  opened  in  other 
dties.  Employers  signed  individual  agreements  ac- 
cepting the  closed  shop,  secretly  vowing  that  they  would 
repudiate  them  immediately  after  hostilities  were  over. 
Those  employers  who  fought  the  closed  shop  as  matter 
of  principle  continued  their  fight  and  lost  large  sums  of 
money,  their  less  scrupulous  competitors  manufacturing 
garments  under  strictly  closed  shop  agreements.  This 
was  the  situation  which  again,  as  counsel  for  the  em- 
ployers, I  presented  to  the  Supreme  Court.  Upon  the 
evidence  presented,  including  the  record  of  the  con- 
ference, the  Court  said: 

The  primary  purpose  of  this  strike  is  not  to  better  the 
condition  of  the  workman  but  it  is  to  deprive  other  men 
of  the  opportunity  to  exercise  their  right  to  work  and  to 
drive  them  from  an  industry  in  which,  by  labor,  they 
may  have  acquired  skill  and  which  they  have  a  right  to 
pursue  to  gain  a  livelihood  without  being  subjected  to 
the  doing  of  things  which  may  be  disagreeable  or  re- 
pugnant. That  this  is  the  motive  which  animates  the 
combination  of  defendants  is  clear  from  the  correspond- 
ence, the  negotiations,  the  conferences,  and  the  acts  and 
conduct  disclosed  in  papers  before  the  court.* 

The  judge  who  wrote  this  opinion  was  made  the  sub- 
ject of  ridicule  and  abuse,  and,  of  course,  the  lawyer 
for  the  association  came  in  for  his  share.    But  this  deci- 

*  Schwarcz  v.  International  Ladies'  Garment  Workers'  Union,  68 
Misc.  (N.  Y.)  528;  (534). 


THE   CLOSED   SHOP  25 

sion  sounded  the  death  knell  of  the  closed  shop  as  part 
of  the  propaganda  of  the  garment  workers  of  New  York. 
When  later  the  preferential  union  shop  was  accepted 
in  Heu  of  the  closed  shop,  it  was  followed  by  similar 
protocols  in  other  industries  in  New  York,  Philadelphia 
and  Chicago,*  and  was  made  the  basis  of  strikes  in  the 
men's  clothing  industry  in  New  York  City,  Chicago, 
Rochester,  and  Baltimore.  I  think  it  may  be  said  with 
accuracy  that,  so  far  as  the  Hebrew  trades  of  New  York 
are  concerned,  the  propaganda  of  the  closed  shop  as  a 
means  for  improving  the  condition  of  the  workers  has 
been  abandoned.  As  this  chapter  is  being  written,  it 
is  reported  that  the  Ladies'  Garment  Workers  have 
accepted  an  agreement  in  Chicago  with  the  cloak  man- 
ufacturers' association  on  the  basis  of  the  preferential 
union  shop  instead  of  the  closed  shop.  In  January,  191 2, 
after  a  year  and  a  quarter's  experience,  the  editor  of 
The  Ladies'  Garment  Worker  wrote  concerning  the  closed 
shop: 

...  we  beheve  that  members  prefer  working  at  a 
preferential  shop  and  earning  good  wages  than  working 
at  a  strictly  closed  shop,  under  the  full  control  of  the 

*  See  Bulletins  144  and  145,  Bureau  of  Labor  Statistics,  Department 
of  Labor. 

See  agreement,  Hart,  Schaffner  &  Marx,  Chicago. 

See  George  Creel:  A  Way  to  Industrial  Peace,  The  Century,  July, 

1915- 

See  also  proposed  agreements,  Amalgamated  Clothing  Workers  of 
America. 


26  LAW  AND   ORDER  IN  INDUSTRY 

union,  and  go  away  with  poor  pay  envelopes.  After  all, 
the  union  shop  is  only  a  means  to  increase  the  em- 
ployees' earnings  and  not  an  end  in  itself. 

In  the  hearings  before  the  Industrial  Relations  Com- 
mission at  Washington  in  the  winter  of  1914,  the  former 
head  of  Typographical  Union  No.  6  stated  that  if  the 
national  master  printers'  organization,  with  which  the 
typographers  had  been  at  war  for  many  years,  was  will- 
ing now  to  sign  an  agreement  on  the  preferential  union 
shop  basis,  similar  to  the  one  then  existing  in  the  cloak 
industry,  he  believed  the  union  would  cheerfully  accept 
it.  The  following  resolution  adopted  by  all  the  members 
of  the  Federal  Industrial  Relations  Commission  is  signif- 
icant: 

Whereas,  The  Commission  finds  that  the  terms 
open  shop  and  closed  shop  have  each  a  double  meaning, 
and  should  never  be  used  without  telling  which  meaning 
is  intended,  the  double  meaning  consisting  in  that  they 
may  mean  either  union  or  non-union;  Therefore,  for  the 
purposes  of  this  report, 

Be  it  Resolved,  That  the  Commission  on  Industrial 
Relations  will  not  use  the  terms  "open  shop"  and 
"closed  shop,"  but  in  Ueu  thereof  will  use  "union  shop" 
and  "non-union  shop." 

The  union  shop  is  a  shop  where  the  wages,  the  hours  of 
labor,  and  the  general  conditions  of  employment  are 
fixed  by  a  joint  agreement  between  the  employer  and  the 
trade  union. 

The  non-union  shop  is  one  where  no  joint  agreement 


THE  CLOSED  SHOP  27 

exists,  and  where  the  wages,  the  hours  of  labor,  and  the 
general  conditions  of  employment  are  fixed  by  the 
employer  without  cooperation  with  any  trade  union. 
Wherever  the  terms  are  used  in  this  report,  they  bear 
the  interpretation  as  set  forth  above.* 

The  rejection  of  the  proposal  made  on  August  first 
was  a  mistake.  In  industrial  matters,  as  in  poUtical 
matters,  mistakes  have  a  way  of  correcting  themselves, 
but  the  price  paid  for  the  correction  is  often  a  very 
high  one.  Experience  is  the  most  expensive  way  of 
correcting  such  errors.  For  four  weeks  after  the  first  of 
August  the  strike  continued.  The  newspapers  were 
full  of  accounts  of  disorder  and  of  accounts  of  the  hard- 
ships of  the  workers.  Finally  the  pressure  upon  the 
charities  of  the  City  of  New  York  became  so  great  that 
leading  citizens  intervened,  and  through  the  good  offices 
of  Mr.  Louis  Marshall,  the  distinguished  New  York 
lawyer,  Mr.  London  and  I  were  brought  together,  with 
the  approval  of  our  cHents,  for  conference.  The  mistake 
was  corrected.  The  proposal  of  August  i,  19 10,  became 
the  Protocol  of  Peace  of  September  2,  1910.  This  docu- 
ment was  the  governing  instrument  for  the  industry 
until  May  17,  191 5.    It  is  printed  in  full  as  Appendix  A. 

*  Report  of  Federal  Commission  on  Industrial  Relations  (1915), 
P-  253. 


CHAPTER  III 

THE  POLICY  OF  THE  PROTOCOL 

When  a  strike  is  settled,  it  means  that  the  parties 
have  come  to  an  understanding.  As  in  the  case  of  all 
other  agreements,  it  is  usually  reduced  to  writing,  if 
for  no  other  reason  than  to  preserve  ready  evidence  of 
the  terms.  When  such  agreements  are  made  between 
a  group  of  employers  and  a  group  of  workers,  the  process 
is  called  "collective  bargaining."  Such  collective  agree- 
ments are  quite  prevalent  in  Great  Britain.  In  the 
"Report  on  Collective  Agreements  between  Employers 
and  Workpeople  in  the  United  Kingdom"  pubHshed 
in  1910,  issued  by  the  Board  of  Trade  (Labor  Depart- 
ment), Sir  George  Askwith  reports  that  there  were 
then  in  existence  one  thousand  six  hundred  and  ninety- 
six  such  agreements  involving  two  milHon  four  hundred 
thousand  people.  In  the  introduction,  Sir  George  Ask- 
with says: 

The  wide  prevalence  of  these  arrangements  in  our  most 
important  industries  must  have  an  important  influence 
on  industrial  enterprise,  for  when  the  level  of  wages,  the 
length  of  the  working  day,  and  other  probable  conditions 
of  employment  are  regulated,  for  specified  periods  of 

28 


THE   POLICY  OF  THE   PROTOCOL  29 

greater  or  less  duration,  by  clearly  defined  agreements, 
the  employers  concerned  must  be  enabled  to  calculate 
with  precision  that  part  of  the  cost  to  production  which 
will  be  represented  by  labour;  however,  when  these 
agreements  bind  the  whole  or  a  very  large  proportion  of 
the  firms  engaged  in  a  given  trade,  the  danger  of  under- 
cutting by  rivals  who  find  it  possible  to  obtain  labour  at  a 
lower  price  is  materially  reduced. 

In  the  more  recent  report  of  the  British  Industrial 
Council  on  its  "Enquiry  into  Industrial  Agreements," 
dated  1913,  the  Council  says: 

18.  The  value  of  efficient  organization  on  the  part  of 
employers  and  work-people  as  a  means  of  securing  the 
due  fulfilment  of  industrial  agreements  is  very  clearly 
demonstrated  by  the  experience  of  the  different  trades 
of  the  country. 

29.  The  desirability  of  maintaining  the  principle  of 
collective  bargaining — which  has  become  so  important  a 
constituent  in  the  industrial  life  of  this  country — cannot 
be  called  into  question,  and  we  regard  it  as  axiomatic 
that  nothing  should  be  done  that  would  lead  to  the 
abandonment  of  a  method  of  adjusting  the  relationships 
between  employers  and  work-people  which  has  proved  so 
mutually  advantageous  throughout  most  of  the  trades 
of  the  country. 

This  result  has  been  brought  about  in  Great  Britain 
through  encouragement  by  the  Board  of  Trade  of  the 
making  of  trade  agreements,  and  through  the  frequent 
application  of  the  Conciliation  Act  of  1896,  now  known 


30  LAW  AND  ORDER  IN  INDUSTRY 

as  the  "Trade  Disputes  Act"  (59-60  Vict.,  Chap.  30, 
7  th  of  August,  1896). 

The  agreement  between  the  International  Ladies' 
Garment  Workers  Union  and  The  Cloak,  Suit  and  Skirt 
Manufacturers  Protective  Association  was  a  "collective 
agreement."  It  established  a  minimum  scale  of  wages 
for  week  workers,  maximum  hours,  number  of  hoKdays 
to  be  observed,  limitation  of  hours  of  overtime,  pro- 
hibition of  home  work,  requirement  for  electric  instead 
of  foot  power,  etc.  In  these  various  directions  thus  re- 
corded the  workers  made  marked  advances,  as  is  indi- 
cated in  the  following  recent  statement  by  the  chief 
executive  officer  of  the  union: 

The  protocol  afforded  positive  gains.  Even  the  seem- 
ingly petty  provisions  requiring  the  abolishment  of  foot 
power,  and  the  introduction  of  electric  power  for  operat- 
ing machines,  was  a  gain  that  could  be  felt  in  the  very 
bone  and  marrow.  The  regulating  of  deposits  for  tools 
abolished  another  hardship.  A  cloakmaker  suffering 
starvation  for  months,  upon  finding  employment,  had 
to  hunt  for  sums  of  $3.00  and  $5.00  to  deposit  with  the 
employer  for  the  tools  he  was  to  use.  From  pressers 
a  much  larger  security  was  exacted.  In  practice  this 
amounted  to  a  payment  for  the  privilege  of  securing  the 
job;  and  the  difficulty  of  having  these  sums  refunded 
upon  their  leaving  the  firm's  employ,  was  a  hardship 
just  as  oppressive.  The  protocol  fixed  $1 .00  as  the  sum  of 
this  deposit,  for  which  the  employer  was  required  to  give 
a  formal  receipt,  and  introduced  similar  improvements. 
These  reforms  cannot  be  overestimated.     They  have 


THE   POLICY  OF  THE  PROTOCOL  31 

modernized  the  trade.  Add  the  fifty-hour  week,  the 
preferential  shop  and  the  Board  of  Sanitary  Control  and 
it  must  be  granted  that  the  reforms  were  of  profound 
significance.* 

A  few  illustrations  of  the  betterment  of  individual 
workers'  conditions  are  taken  as  examples,  from  Bulletin 
147,  Bureau  of  Labor  Statistics,  Department  of  Labor.f 

*  B.  Schlesinger:  Our  Recent  Struggle  and  Its  Results,  The  Ladies' 
Garment  Worker,  September,  1915,  p.  15. 

t  "After  the  settlement  of  the  strike,  in  September,  practically  every  in- 
dividual in  the  200  studied  was  earning  more  than  before  the  strike.  .  .  . 

"Presser  No.  3. — Born  in  Russia,  in  1887;  .  .  .  about  one  year  after 
arrival  in  the  United  States,  at  21  years  of  age,  entered  the  industry, 
learned  the  trade  in  the  shop,  beginning  as  a  piece  presser;  worked  two 
weeks  for  nothing  as  a  learner,  then  3  weeks  at  $3,  then  a  few  weeks  at 
$3.50,  then  a  few  months  at  $5,  and  by  the  end  of  his  first  year  had 
worked  up  to  $8  as  an  upper  presser  on  skirts;  in  1910  he  was  making 
$10,  which  was  increased  to  $16  after  the  strike;  during  191 1  he  was 
out  of  work,  except  about  3  months  while  he  was  with  a  circus;  during 
191 2  he  worked  as  a  reefer  upper  presser  at  $14,  and  in  1913  as  a  jacket 
imder  presser  at  $18.  .  .  . 

"Presser  No.  4. — Bom  in  Russia,  in  1878;  .  .  .  came  to  the  United 
States  in  1905;  .  .  .  after  about  2  years  in  New  York,  entered  the  in- 
dustry at  29  years  of  age,  learning  the  trade  in  the  shop;  began  as  an 
under  presser,  working  for  5  weeks  at  $4,  and  then  for  2  years  at  $7;  in 
1910  he  made  $9  as  an  under  presser,  but  after  the  strike  made  $15  as 
piece  presser;  since  191 1,  under  presser  at  $18.  .  .  . 

"Presser  No.  5. — Bom  in  Roumania,  in  1861;  .  .  .  came  to  United 
States  in  1902  and  entered  the  industry  at  once,  at  41  years  of  age;  be- 
gan as  piece  presser,  working  2  weeks  for  nothing,  then  for  3  months  at 
$3  per  week,  then  at  $7;  for  2  years  worked  at  $9;  by  1910  was  making 
$12  and  $13  per  week,  and  since  the  strike  $19  as  skirt  upper  presser; 
learned  the  trade  in  the  shop  from  other  workers.  .  .  . 

"Presser  No.  6. — Bom  in  Russia,  in  1874;  .  .  .  Came  to  United  States 
in  1904,  where  he  was  a  peddler  with  a  pushcart  for  about  a  year  and  a 
half;  after  about  2  years  in  the  United  States,  at  32  years  of  age,  began 


32  LAW  AND  ORDER  IN  INDUSTRY 

Quite  apart,  however,  from  immediate  material  gains 
guaranteed  by  these  specific  provisions  of  the  Protocol, 
the  document   contained   general  provisions  of  much 

as  skirt  under  presser,  learning  the  trade  in  the  shop;  worked  2  weeks 
for  $5  per  week,  then  several  months  at  $8,  then  a  year  at  $12,  and  by 
1910  was  making  $16,  and  by  1912  became  a  jacket  upper  presser  at 
$21.  .  .  . 

"Cutter  No.  i. — Born  in  Italy  in  1890;  .  .  .  came  to  United  States 
in  1900  and  6  years  later,  at  16  years  of  age,  entered  the  industry,  learn- 
ing the  trade  in  the  shop;  began  as  a  learner,  making  $5  to  $8  the  first 
year;  worked  one  year  as  a  canvas  cutter  at  $10,  then  2  years  as  a  cloth 
cutter  at  $14  and  $16;  at  the  time  of  the  strike  in  19 10  he  went  into 
business  for  himself,  manufacturing  willow  plumes;  in  191 2  returned  to 
the  industry  as  a  cloth  cutter  at  $25.  .  .  . 

"Cutter  No.  3. — Bom  in  New  York,  N.  Y.,  in  1893;  ...  in  1907 
went  to  work  as  an  errand  boy  at  $4  per  week;  in  1908  was  collector  for 
a  cotton  house  at  $7,  and  in  1909  shipping  clerk  in  a  cloak  house  at  $7; 
in  1910,  at  17  years  of  age,  he  entered  this  occupation  as  a  learner  at  the 
cutting  table,  starting  at  $4  and  working  up  to  $11  in  6  months;  at  the 
time  of  the  strike  in  1910  he  went  to  Detroit,  where  he  secured  a  job  as 
a  mechanic  in  an  automobile  factory  at  $15;  in  191 1  he  returned  to  New 
York,  making  $25  as  a  cloth  cutter  since  that  date.  .  .  . 

"Cutter  No.  4. — Bom  in  United  States  in  1891;  ...  in  1904  went  to 
work  as  a  stock  clerk  at  $6,  the  next  year  making  $8;  the  following  year 
was  ofiSce  boy  and  apprentice  draftsman  in  an  architect's  office  at  $10, 
and  then  for  2  or  3  years  was  shipping  clerk,  stock  clerk,  and  factory 
bookkeeper  at  $12;  after  the  strike  in  1910  he  entered  this  industry,  at 
19  years  of  age,  as  a  canvas  cutter  at  $12;  during  the  past  2  years  he  has 
been  a  cloth  cutter  at  $25;  learned  the  trade  in  the  shop,  beginning  as 
canvas  cutter.  .  .  . 

"Cutter  No.  6. — Bom  in  Russia  in  1891;  .  .  .  came  to  United  States 
in  1902  and  worked  in  leather  trade  4  years;  in  1906,  at  15  years  of  age, 
entered  this  industry  as  canvas  cutter;  learned  the  trade  in  the  shop, 
paying  $25  for  the  privilege  and  in  addition  working  4  weeks  without  pay; 
after  that  received  $6  per  week,  and  in  2  years  was  making  $14  as  trim- 
ming cutter;  since  the  strike  in  1910  has  been  making  $20  as  trimming 
cutter.  .  .  . 

"Cutter  No.  5.— Bom  in  Italy  in  1874;  .  .  .  came  to  United  States 


THE  POLICY  OF  THE  PROTOCOL  33 

greater  import  in  their  ultimate  consequences.  These 
were  the  provisions  for  the  "Preferential  Union  Shop," 
the  Joint  Board  of  Sanitary  Control,  the  permanent 
Board  of  Arbitration,  the  Board  of  Grievances,  and  the 
prohibition  of  strikes  or  lockouts  during  the  life  of  the 
agreement.  Each  one  of  these  phases  of  the  agreement 
deserves  separate  treatment;  but  underlying  all  of  them 
was  a  policy  quite  definite  and  concrete  in  the  minds  of 
those  who  drew  up  the  document.  It  is  this  general 
policy  and  the  institutions  created  to  carry  it  forward, 
now  tested  by  five  years  of  actual  experience,  which 
warrant  study  and  reflection. 

The  experiences  prior  to  and  during  19 10  have  been 
reviewed  not  with  any  idea  of  reminding  either  side  of 
its  mistakes,  but  to  put  light  side  by  side  with  shadow. 
Comparison  between  the  ideal  for  which  we  are  striving 
and  the  gains  actually  made  has  its  legitimate  encourage- 
in  1877;  went  to  work  in  1886  pulling  bastings  at  $1.25  to  $2  per  week; 
beginning  in  1889  was  for  several  years  an  operator  on  men's  clothing 
at  $3  to  $9,  and  then  jacket  tailor  at  $10;  then  for  3  years  a  contractor 
in  men's  clothing  line;  in  1900,  at  26  years  of  age,  he  entered  this  occupa- 
tion, learning  the  trade  by  taking  private  lessons  from  a  cutter  in  the 
latter's  home;  made  $20  as  cutter  on  men's  clothing  and  $22  on  cloaks 
and  suits  up  to  1910;  since  the  strike  in  1910  has  been  making  $25  as 
doth  cutter  on  cloaks  and  suits.  .  .  . 

"Cutter  No.  10. — Bom  in  Austrian  Poland  in  1892;  ...  in  1909  came 
to  United  States  and  entered  this  industry  at  once,  at  17  years  of  age, 
learning  the  trade  in  the  shop  as  a  helper  trimming  cutter;  began  at  $3 
and  was  making  $8  in  1910  as  assistant  trimming  cutter;  since  the  strike 
has  been  making  $18  as  trimming  cutter.  .  .  ."  (Pp.  139,  140,  142,  143, 
144.) 


34  LAW  AND  ORDER  IN  INDUSTRY 

ment;  but  such  comparisons,  to  be  of  real  value,  must 
mark  the  difference  between  two  points  of  progress. 

The  Protocol  has  been  called  "a  lawyer-made  instru- 
ment." This  is  true.  It  was  but  natural  that  the  im- 
plicit policy  underlying  its  phrasing  should  be  shaped 
by  such  experience  and  learning  of  the  world's  efforts 
to  secure  justice  by  law  as  the  framers  could  bring  to 
their  task.  A  rather  warm  admirer  of  its  provisions 
wrote  recently  that  it  was  of  a  kind  with  our  Federal 
Constitution.  Of  course,  he  overestimated  its  value. 
But  it  is  true  that  it  was  the  first  attempt  to  introduce  a 
Constitution — a  rule  of  law  and  order — into  the  industry. 
Now,  no  one  knows  better  than  the  lawyer  that,  without 
power  to  enforce  law,  law  is  nugatory.  Criminal  statutes 
without  penalty  have  no  value.  Some  of  our  best  citi- 
zens are  only  observant  of  the  law  because  they  fear  the 
consequences.  No  Hague  Tribunal  can  make  peace 
certain  without  some  police  power  to  enforce  its  deci- 
sions. The  judgment  of  the  United  States  Supreme 
Court  would  be  of  no  value,  if  there  were  no  United 
States  marshal  with  the  power  of  the  Federal  Govern- 
ment back  of  him  to  execute  the  court's  warrant.  In- 
deed, the  document  authorizing  the  marshal  to  act  is 
called  a  "writ  of  execution."  By  the  same  experience, 
no  one  knows  better  than  the  lawyer  the  futiHty  of  force 
as  a  means  of  making  law  or  determining  the  justice 
of  any  cause.    It  seems  incredible  that  there  were  times 


THE  POLICY  OF  THE   PROTOCOL  35 

when  grave  moral  issues,  grave  legal  questions  were 
determined  only  by  trial  by  battle,  the  ordeal  or  the  duel. 
It  was  not  until  1819  that  trial  by  wager  or  battle  was 
aboHshed  in  England.  As  late  as  181 7,  one  Abraham 
Thornton,  acquitted  of  the  charge  of  murder,  threw 
down  the  gauntlet  and  offered,  on  an  "appeal  of  murder," 
to  test  the  vaHdity  of  the  charge  by  battle.  The  com- 
plaining relative  of  the  deceased,  refusing  to  take  the 
challenge,  let  the  appeal  drop,  and  this  was  the  last 
case  of  trial  by  wager  of  battle.  Although  the  Romans 
had  a  system  of  trials,  trial  by  jury  as  it  is  now  known 
did  not  come  into  general  practice  until  the  latter  half 
of  the  12  th  century,  under  Henry  IL*  The  ordeal  was 
aboHshed  in  1215.!  If  ever  we  are  impatient  with  the 
results  of  civilization's  efforts  to  adjust  international 
matters  by  the  processes  of  reason,  let  us  recaU  that 
we  are  scarcely  a  century  away  from  the  time  when  the 
determination  of  private  disputes  by  the  rule  of  the 
strong  arm  was  finally  abolished,  and  we  are  but  seven 
centuries  away  from  the  introduction  into  English  juris- 
prudence of  the  system  of  trying  facts  before  juries. 
And  let  us  not  forget  that  even  at  the  present  moment 
we  are  witnessing  the  effort  of  a  single  nation  to  demon- 
strate that  power,  appHed  efficiently,  is  the  only  method 
for  making  moral  progress.     If  we  are  so  backward  in 

*  Pollock  and  Maitland:  "History  of  English  Law,"  Vol.  I.,  p.  144. 
t/(i.,Vol.  n,p.S99. 


36  LAW  AND   ORDER  IN  INDUSTRY 

international  relations,  is  it  any  wonder  that  the  flame 
of  faith  in  the  juridical  method  of  administering  justice 
should  flicker? 

If  this,  then,  was  "a  lawyer-made  document,"  we 
should  expect  to  find  in  it  provisions  for  a  permanent 
tribunal  of  some  sort  that  should  be  constituted  as 
nearly  as  practicable  the  supreme  court  of  the  industry; 
and  provisions  Hkewise  inhibiting  resort  to  war,  i.  e., 
strikes  and  lockouts,  so  long  as  such  a  tribunal  existed. 
The  foundation  for  such  a  tribunal  was  first  suggested 
by  the  union.  In  its  communication  looking  to  the 
conference  of  August,  1910,  the  union  stated  that  to 
remedy  its  grievances  it  was,  in  its  opinion,  "neces- 
sary ...  to  establish  a  permanent  board  of  arbitration 
which  is  to  settle  grievances,  the  union  and  employers 
to  be  equally  represented  on  the  board  of  arbitra- 
tion. ..."  One  of  the  striking  features  of  the  Protocol 
is  the  complete  absence  of  time  limit.  It  has  been  fre- 
quently referred  to  as  a  perpetual  agreement;  but  this 
is  a  misuse  of  terms;  in  fact,  it  could  be  terminated  in- 
stanter  by  either  party.  So  long  as  the  parties  had 
sufficient  confidence  in  each  other  and  in  the  Board  of 
Arbitration  to  keep  the  Protocol  alive,  it  would  live. 
And  the  Board  was  selected  before  any  controversy 
had  arisen.  The  value  of  a  Board  of  Arbitration  selected 
in  advance  of  any  controversy  has  long  been  under- 
stood by  students  of  the  larger  problem  of  arbitration. 


THE  POLICY  OF  THE  PROTOCOL  37 

James  Brown  Scott,  in  the  introduction  to  the  Proceed- 
ings of  the  191 2  Conference  of  the  American  Society 
for  the  Judicial  Settlement  of  International  Disputes, 
thus  indicates  the  principal  advantages  of  a  truly  per- 
manent court  composed  of  judges  (pp.  9-10) : 

Parties  in  controversy  are  not  in  the  frame  of  mind  to 
create  a  tribunal,  whereas,  if  the  tribunal  existed,  they 
might  be  willing  to  submit  the  case  to  its  decision. 
Those  who  have  had  experience  in  such  matters  know 
that  it  is  hard  to  agree  upon  judges,  yet  that  nations  are 
unwilling  to  submit  their  disputes  to  a  tribunal  whose 
constitution  is  unknown.  Delays  thus  occur,  whereas 
the  case  should  be  decided  promptly  and  removed  from 
the  field  of  international  controversy.  Again,  judges 
chosen  for  a  particular  purpose  are  supposed  to  be 
friendly  to  the  appointing  powers,  otherwise  they  would 
not  have  been  selected;  and  international  awards  often 
betray  traces  of  compromise.  Again,  a  temporary 
tribunal  does  not  bind  another  diflferent  temporary 
tribunal  any  more  than  it  is  bound  by  its  predecessor,  if 
it  can  be  considered  to  have  a  predecessor.  The  decision 
is  not  likely  to  be  a  precedent,  as  would  inevitably  be 
the  case  if  it  were  decided  by  a  permanent  tribunal  com- 
posed of  the  same  judges  passing  upon  a  like  question. 

It  is  common  knowledge  that  international  law  is  not 
developed  by  the  awards  of  temporary  tribunals.  The 
advantage,  in  fact  the  need,  of  an  authoritative  interpre- 
tation of  international  treaties  or  agreements  requires 
neither  elaborate  statement  nor  argument,  and  it  is 
obvious  that  the  decisions  of  a  permanent  international 
court  constituted  by  the  parties  to  such  treaties  or  agree- 
ments would  bind  all  of  the  contracting  parties  forming 

2079J_2 


38  LAW  AND  ORDER  IN  INDUSTRY 

the  judicial  union,  just  as  the  decisions  of  the  Supreme 
Court  of  the  United  States  bind  the  members  of  the 
American  Union.  Finally,  the  temporary  tribunal  is 
costly  in  comparison  with  a  permanent  court. 

In  connection  with  the  negotiations  for  a  permanent 
treaty  of  arbitration  between  the  United  States  and 
Great  Britain,  Lord  Salisbury,  writing  to  Sir  Julian 
Pauncefote  in  March,  1896,  in  reference  to  the  class  of 
cases  in  which  differences  might  arise  involving  issues 
which  concerned  the  State  itself,  considered  as  a  whole, 
said: 

If  the  matter  in  controversy  is  important,  so  that 
defeat  is  a  serious  blow  to  the  credit  or  the  power  of  the 
litigant  who  is  worsted,  that  interest  becomes  a  more  or 
less  keen  partisanship.  According  to  their  sympathies, 
men  wish  for  the  victory  of  one  side  or  another. 

Under  the  "preferential  union  shop"  arrangement, 
the  manufacturers  undertook  to  strengthen  the  union. 
Their  purpose  was  clearly  understood  by  both  parties. 
If  there  was  to  be  peace  and  order  in  the  industry  by 
restraint  of  the  passions  of  men  and  resort  to  reason 
instead  of  force,  the  strong  power  of  the  workers'  own 
organization  must  be  welded  into  some  sort  of  a  police 
department  for  the  industry,  and,  likewise,  the  em- 
ployers' organization  must  be  another  arm  of  such  a 
poHce  department. 


THE  POLICY  OF  THE   PROTOCOL  39 

For  all  of  the  advances  granted  to  the  workers  by  this 
agreement,  the  employers  received  but  two  substantial 
considerations  in  exchange — the  promise  of  a  rational 
and  peaceable  method  for  securing  adjustment  of  future 
controversies  and  the  equal  enforcement  of  standards 
and  wage  conditions  throughout  the  entire  industry. 
In  the  conference  over  which  Mr.  Brandeis  presided 
on  the  29th  of  July,  19 10,  I  said,  on  behalf  of  the  manu- 
facturers: 

Now,  one  of  the  things  that  we  welcome,  in  this  situa- 
tion, is  the  possibility  of  estabUshing  standard  rates  of 
compensation  throughout  the  industry.  We  want,  if  we 
are  going  to  agree  to  pay  your  people  a  certain  standard — 
we  want  to  be  sure  that  our  competitor,  Mr.  Dyche,  will 
not  be  able  to  get  the  work  done  for  less  than  that ;  that  is 
the  difficulty.  So  long  as  this  has  been  left,  not  as  a 
matter  of  regulation,  but  as  a  matter  of  competition, 
there  is  nothing  to  prevent  the  worker  from  working 
for  whatever  he  can  get,  and  there  is  nothing  to  prevent 
the  employer  from  cutting  him  down  to  the  lowest 
terms,  and  we  are  driven  of  necessity  to  compete  with 
the  others  who  are  paying  the  lowest  wages,  so  that  the 
result  of  it  is  the  constant  lowering  of  the  wage  instead  of 
increasing  it.  We  recognize  that  just  as  you  must  have 
recognized  it  before,  and  I  want  to  say  that  in  this  con- 
nection of  the  wage  standard  we  seek  in  the  organization 
of  your  Union  one  of  the  strongest  means  by  which  to 
prevent  the  inexorable  law  of  competition,  reducing  the 
standard  of  living  in  your  industry  and  we  welcome  your 
Union  for  that,  if  not  for  a  great  many  other  things.    All 


40  LAW  AND  ORDER  IN  INDUSTRY 

we  want  though  is  some  reasonable  expectation  that  the 
Union  is  going  to  hve  up  to  its  part  and  to  this  promise 
to  us.* 

This  was  the  ground-work  of  the  expectation  of  busi- 
ness men,  looking  forward  to  a  better  organization  of 
industry  and  ready  to  join  in  an  effort  to  secure  it.  Ac- 
cordingly, they  agreed  to  strengthen  the  union  and,  in 
cooperation  with  it,  to  bring  order  out  of  chaos.  If  such 
a  result  could  be  accomphshed,  the  social  and  the  business 
aims  of  the  industry  could  be  harmonized.  Of  necessity, 
the  problem  was  one  requiring  for  its  solution  the  help 
of  both  parties.  There  would  be  conflict  of  interest, 
but  in  spite  of  the  conflict  there  could  be  agreement  be- 
tween the  manufacturer  of  broad  outlook  and  the  labor 
leader  who  sought  improvement  in  the  working  condi- 
tions in  the  industry.  Both  had  a  common  task.  Cloak 
manufacturers  are  no  better  and  no  worse  than  lawyers. 
If  the  Bar  Association  had  no  discipline  committee,  the 
roster  of  convicted  and  disbarred  lawyers  would  not 
be  so  long.  It  is  the  associated  effort  to  raise  the  pro- 
fession that  makes  for  cleaner  conduct  generally.  It 
was  the  conception  of  the  industry,  as  in  a  measure,  a 
profession  in  which  mere  gain  or  Uvelihood  was  not  to 
be  regarded  as  the  sole  object  of  activity,  that  gave 
the  breath  of  Hfe  to  the  Protocol  and  inspired  the  leaders. 
This  spirit,  this  ideal,  no  lawyer  could  give  to  his  clients. 

*  Minutes  of  Conference,  July  29,  1910. 


THE  POLICY  OF  THE  PROTOCOL  41 

He  could  bring  method  to  carry  into  actual  practice 
and  show  the  way,  but  he  could  not  furnish  the  vision 
or  the  faith.  And  the  natural  method  was  that  of  parlia- 
ment and  the  law  courts — orderly  debate,  study,  con- 
troversy— but  decision  by  a  process  of  reasoning,  not 
of  coercion  by  one  power  against  another.  The  men 
who  dreamed  of  such  a  program  knew  well  enough  that 
the  millennium  would  still  be  far  off.  And  they  knew 
that  the  introduction  of  the  parHamentary  method  into 
government,  like  the  introduction  of  the  juridical  method 
for  the  settlement  of  private  disputes,  would  not  bring 
about  complete  and  uniform  justice.  They  knew  that 
so  long  as  laws  must  be  made  and  administered  by  human 
beings,  with  the  defects  of  temper  and  of  intellect  of 
human  beings,  error  would  be  sure  to  arise.  The  faith 
of  the  parHamentarian  and  the  lawyer  that,  in  the  long 
run,  justice  is  more  approximately  secured  and  progress 
made  with  less  waste  by  the  parhamentary  and  juridical 
method,  is  based  upon  the  soHd  foundation  of  human 
experience. 

The  Board  of  Grievances  was  created  to  take  care  of 
ordinary  shop  difl&culties  that  would  not  require  the 
services  of  the  higher  tribunal.  Its  procedure  was  neb- 
ulous. The  protocol  contained  the  barest  outlines  of 
its  functions.  The  lawyers  who  drew  the  protocol  knew 
the  evils  of  the  law's  delays  and  the  consequences  of 
complexity  of  procedure.     They  sought  to  devise  the 


42  LAW  AND  ORDER  IN  INDUSTRY 

simplest  method  possible  for  ascertaining  truth  in  a 
shop  or  factory  controversy. 

This,  then,  was  the  policy  of  the  Protocol:  Assuming 
controversy  and  conflict  between  parties  having  diver- 
gent interests  as  inevitable,  that  such  controversy  and 
conflict  should  be  put  upon  the  plane  of  procedure  of 
civilized  and  orderly  men;  that  justice,  however  approxi- 
mate, should  be  arrived  at  by  the  rational  method,  and 
that  law  and  order  should  take  the  place  of  anarchy. 


CHAPTER  IV 

THE  JOINT  BOARD   OF   SANITARY  CONTROL 

In  1 910  the  factories  of  the  cloak  and  suit  manufac- 
turers were  distributed  in  various  parts  of  the  city.  Some 
were  on  the  lower  East  Side,  some  were  in  Greene, 
Wooster  and  Mercer  Streets.  But  the  larger  manufac- 
turers were  in  loft  buildings  in  what  was  then  known 
as  the  "uptown"  district.  This  district  embraced  Fifth 
Avenue  and  the  adjacent  side-streets  as  far  north  as 
Twenty-seventh  and  Twenty-eighth  Streets.  The  better 
sanitary  conditions  were  to  be  found  in  these  larger  loft 
buildings,  where  some  of  the  leading  manufacturers 
had  already  estabhshed  modern  lunch  and  rest  rooms 
for  employees.  That  there  were  unsanitary  conditions 
in  many  shops  both  in  the  loft  and  East  Side  districts 
could  not  be  disputed.  In  the  strike  of  19 10  much 
publicity  was  given  to  both  the  good  and  the  bad  sani- 
tary conditions  in  the  industry.  Newspaper  men  and 
women  visited  the  factories  and  reported  upon  the  very 
bad  conditions  in  some  parts  of  the  city  and  the  very 
good  conditions  in  others.  It  was  but  natural  that  the 
representatives  of  the  union  should  dwell  upon  the  bad 
conditions  and  the  representatives  of  the  association 

43 


44  LAW  AND  ORDER  IN  INDUSTRY 

should  dwell  upon  the  good  conditions.  When,  how- 
ever, the  list  of  grievances  to  be  discussed  at  the  con- 
ference to  be  held  in  July,  1910,  was  submitted  by  the 
union,  no  mention  was  made  of  the  sanitary  conditions 
in  the  industry. 

As  counsel  for  the  manufacturers,  I  thought  it  weak- 
ened their  position  to  be  obliged  to  face  this  constant 
criticism.  But  quite  apart  from  this  line  of  reasoning, 
it  seemed  to  me  that  the  industry  itself  ought  to  assume 
the  responsibility  for  its  own  sanitary  conditions,  as 
the  Bar  assumes  responsibility  for  the  ethical  conduct 
of  its  members.  State  and  local  inspection  had  broken 
down.  Only  by  the  cooperation  of  both  the  employers 
and  the  workers  could  any  marked  improvement  be 
made.  I  believed  that  both  sides  should  bring  the  in- 
fluence of  the  pubHc  to  bear  upon  the  problem  and  to 
solve  it  in  an  intelHgent  way.  The  process  of  reasoning 
naturally  led  to  the  conception  of  a  triangular  board, 
made  up  on  one  side  of  representatives  of  employers,  on 
the  other  of  the  workers,  and  on  the  third  of  the  public, 
vesting  in  the  board  all  the  power  that  the  union  and  the 
association  could  give,  and  concreting  it  with  all  of  the 
power  and  influence  that  the  public  could  bring.  I  pre- 
sented the  matter  to  my  clients  and  found  that  they  were 
more  than  ready  to  authorize  me  to  ofifer  my  suggestion  to 
the  union.  The  record  shows  that  on  the  29th  of  July, 
1910,  the  matter  was  presented  in  the  following  language: 


THE  JOINT  BOARD  OF  SANITARY  CONTROL         45 

May  I  say  this,  that  in  the  published  discussion  of  this 
strike  emphasis  seems  to  have  been  laid  upon  the  un- 
sanitary conditions  in  the  industry,  and  the  better  class 
of  manufacturers  were  very  sensitive  about  that,  because 
of  the  fact  that  they  had  been  making  earnest  eflforts 
to  create  sanitary  conditions  and  had  met  considerable 
difficulties  on  the  part  of  their  employees.  Now,  un- 
doubtedly in  some  of  the  shops  of  the  cloak  manufac- 
turers unsanitary  conditions  exist,  and  we  have  learned 
since  these  contracts  have  been  signed  up  that  contracts 
have  been  signed  with  some  manufacturers  who,  accord- 
ing to  our  standards,  have  unsanitary  shops,  and  we 
were  rather  astonished  when  the  statement  of  grievances 
came  to  us  that  the  sanitary  conditions  were  eliminated, 
as  a  grievance.  In  the  statement  of  grievances  there  was 
nothing  said  about  sanitary  conditions.  I  was  very  glad, 
therefore,  when  Mr.  London,  in  making  up  the  topic, 
included  that  for  discussion  here.  Now,  we  are  very 
much  concerned  about  this  question,  because  we  have 
some  pride  in  our  industry,  and  we  know  that  it  is  ex- 
ceedingly difficult  to  observe  sanitary  conditions.  I  am 
frank  to  confess  that  I  do  not  see  that  it  will  make  very 
much  progress  here  to  go  into  the  specific  details  of 
unsanitary  conditions,  and  I  will  suggest  to  my  learned 
brother  that  he  take  under  advisement  with  his  people 
the  proposition,  that  both  parties  estabHsh  as  the  result  of 
this  conference  a  board  of  sanitary  supervision,  on  which 
there  shall  be  people  representing  the  public  who  shall 
endeavor  to  establish  a  standard  to  which  factories  in 
this  industry  shall  conform,  and  when  that  board  of 
sanitary  control  makes  its  recommendations,  we  will 
legislate  for  our  members  on  our  side,  so  that  no  worker 
will  work  where  these  conditions  do  not  exist,  and  no 
honorable  cloak  manufacturer  will  remain  a  member 


46  LAW  AND  ORDER  IN  INDUSTRY 

of  our  Association  if  he  does  not  observe  these  con- 
ditions.* 

The  same  afternoon  the  proposition  was  accepted  by 
the  union  and  a  general  outline  of  the  method  is  con- 
tained in  the  following  statement  then  made  with  the 
full  approval  of  my  cHents: 

We  reaUze  that  the  suggestion  that  I  made  requires  a 
great  deal  of  efficient  work  to  carry  it  into  effect.  We 
are  prepared,  on  our  part,  I  may  say  that  if  the  suggestion 
is  adopted,  to  establish  a  corps  of  inspectors,  paid  in- 
spectors. If  your  organization  cannot  afford  to  pay  the 
whole  expense,  we  will  bear  the  larger  burden  of  it.  We 
are  perfectly  willing  that  you  shall  bear  half  of  the  ex- 
pense, if  you  can  do  it  out  of  your  organization  funds,  but 
we  want  this  general  board  of  control  to  be  so  effective — 
to  have  reliable  people,  people  whom  your  committee  se- 
lects, whose  business  it  will  be  to  visit,  not  only  the  shops 
of  our  own  members,  but  as  far  as  possible,  the  shops  of 
non-members  of  our  association,  and  let  their  reports  be 
the  reports  on  which  the  General  Board  of  Sanitary  Super- 
vision will  act.  That  is  going  to  require  efficient  manage- 
ment; going  to  require  efficient  skill;  going  to  require 
good  inspection,  and  we  expect  to  get  out  of  it,  by  way  of 
return,  the  knowledge  on  our  part  that  no  loose  criticism 
can  hereafter  be  made, — but  it  will  have  to  be  definite, 
and  in  addition  to  that,  we  will  be  able  to  make  practical 
the  pride  that  we  have  in  our  industry  at  the  present 
time.  Now,  we  do  not  pretend  to  be  white-robed  angels 
on  our  side;  we  do  not  pretend  that  every  man  in  our 
association   has  reached   the  highest  stage  of  human 

*  Minutes  of  Conference,  July  29,  1910. 


THE  JOINT  BOARD   OF  SANITARY   CONTROL        47 

development,  but  we  are  going  to  do  our  level  best  to 
raise  him  to  that  standard  if  we  can.  We  are  going  to  do 
our  level  best  to  make  the  standard  clear,  and  we  are  go- 
ing to  do  our  best  to  make  it  enforcible,  and  we  want  you 
to  feel  that  all  of  your  people  are  not  white-robed  angels; 
to  see  that  you  have  your  fair  share  of  the  job,  and  you 
must  be  willing  to  undertake  it  with  us.  We  will  join 
hands,  and  we  will  get  out  of  this  strike  .  .  .  something 
that  will  lift  the  entire  standard  of  civilization  in  our 
city.* 

The  provision  of  the  Protocol  as  it  was  signed  on  the 
2d  of  September,  1910,  contained  the  following: 

The  parties  hereby  establish  a  Joint  Board  of  Sanitary 
Control,  to  consist  of  seven  members,  composed  of  two 
nominees  of  the  manufacturers,  two  nominees  of  the 
unions,  and  three  who  are  to  represent  the  public,  the 
latter  to  be  named  by  Meyer  London,  Esq.,  and  JuHus 
Henry  Cohen,  Esq.,  and,  in  the  event  of  their  inability 
to  agree,  by  Louis  Marshall,  Esq. 

Said  board  is  empowered  to  establish  standards  of 
sanitary  conditions,  to  which  the  manufacturers  and  the 
unions  shall  be  committed,  and  the  manufacturers  and 
the  unions  obligate  themselves  to  maintain  such  stand- 
ards to  the  best  of  their  ability  and  to  the  full  extent  of 
their  power. 

The  scheme  thus  vaguely  outlined  at  the  end  of  July, 
1910,  became  an  actuality  in  September.  The  Board 
was  formed  with  distinguished  representatives  of  the 

*  Minutes  of  Conference,  July  29,  1910. 


48  LAW  AND  ORDER  IN  INDUSTRY 

public  and  the  two  representatives  from  each  side.  Ap- 
propriations were  freely  voted  and  a  careful  survey  of 
the  industry  made.  Such  a  survey  has  been  regularly 
made  every  six  months  since  that  time.  The  gradual 
improvement  in  sanitary  conditions  is  disclosed  in  the 
printed  bulletins  and  reports  of  the  Joint  Board  of 
Sanitary  Control.  The  figures  showing  the  gradual 
elimination  of  cellar  shops,  fire  traps,  pest  holes  and 
like  conditions  in  the  industry  are  most  graphically 
displayed.  The  Board  has  had  exhibits  at  the  First 
and  Second  Expositions  of  Safety  and  Sanitation  and 
has  been  awarded  Gold  Medals.  It  has  had  an  exhibit 
at  the  exposition  in  San  Francisco  and  has  been  awarded 
a  Bronze  Medal.  No  one  has  recognized  its  efiicacy  and 
appreciated  its  value  to  the  community  so  well  as  the 
Commissioner  of  Health  of  the  City  of  New  York,  who  in 
July,  19 1 5,  commenting  upon  the  termination  of  the 
Protocol  stated  publicly: 

The  effectiveness  of  its  work  (the  Board  of  Sanitary 
Control)  has  been  universally  recognized  and  com- 
mended, and  the  program  of  the  Joint  Board  is  to-day  the 
official  program  of  the  Department  of  Health  for  the  sanitary 
regulation  of  industry  generally. 

The  need  of  sanitary  industrial  regulation  is  obvious. 
Regulation  by  compulsion,  however,  is  not  and  never  can 
be  wholly  satisfactory.  There  is  safety  in  self-respect, 
and  an  industry  which  undertakes  to  maintain  by  its 
own  efforts  proper  sanitary  standards,  not  only  protects 


THE  JOINT  BOARD  OF  SANITARY  CONTROL         49 

itself  but  is  an  aid  to  society.  For  these  reasons  the 
Department  of  Health  is  endeavoring  to  arouse  a  livelier 
interest  in  and  a  better  understanding  of  sanitary  mat- 
ters in  various  industries.  Our  two  strongest  arguments 
are  these:  first,  that  sanitary  standards  are  desirable;  and 
second,  that  the  maintenance  of  sanitary  conditions  is 
practicable  through  voluntary  effort,  in  proof  of  which 
heretofore  it  has  been  necessary  only  to  point  to  the 
actual  record  of  the  Joint  Board  of  Sanitary  Control. 
The  discontinuance  of  that  body  is  a  grave  loss  to  the  public- 
health  movement* 

Miss  Lillian  D.  Wald,  Chairman  of  the  Executive 
Committee  of  the  Joint  Board  of  Sanitary  Control,  writ- 
ing in  her  book,  "  The  House  on  Henry  Street,"  says: 

(P.  283).  Since  those  days  (strike  of  1910)  cloaks 
are  no  longer  made  in  New  York  tenement  homes,  and 
the  once  unhappy,  sweated  workers,  united  with  other 
garment-makers,  have  been  lifted  into  eminence  because 
of  the  unusual  character  of  their  organization. 

(Pp.  284-285).  High  sanitary  standards  and  a 
living  wage,  with  reasonable  hours  of  employment,  were 
assured  so  long  as  both  parties  submitted  to  the  terms 
of  the  protocol.  Whatever  changes  in  the  administra- 
tion of  the  trade  agreement  may  be  made,  the  protocol 
has  estabhshed  certain  principles  invaluable  for  the 
present  and  for  future  negotiations.  The  world  seemed 
to  have  moved  since  we  shuddered  over  the  long  hours 
and  the  germ-exposed  garments  in  the  tenements. 

*  Letter,  S.  S.  Goldwater,  M.  D.,  to  The  New  Republic,  appearing 
under  heading  "Protocol  Aided  Public  Health,"  issue  of  July  24,  1915, 
P-  314- 


so  LAW  AND  ORDER  IN  INDUSTRY 

The  success  of  the  Board  as  an  institution  must  be 
regarded  as  unqualified.  The  verdict  is  unanimous. 
When  in  May,  19 15,  the  employers  found  it  necessary, 
in  their  judgment,  to  terminate  the  Protocol,  they  felt, 
nevertheless,  that  the  work  of  the  Board  of  Sanitary 
Control  should  be  continued.  Though  the  termination 
of  the  Protocol  left  no  legal  basis  for  the  institution, 
yet  on  the  nth  day  of  June,  19 15,  the  employers  wrote 
the  Chairman  as  follows: 

New  York,  June  nth,  1915. 
Hon.  William  J.  Schieffelin, 
31  Union  Square,  East, 
New  York  City. 

Dear  Sir: — 

The  very  excellent  work  done  for  the  cloak  industry 
during  the  past  five  years  by  the  Board,  of  which  you 
were  Chairman,  should,  in  our  judgment,  be  continued. 
Accordingly,  we  send  you  our  check  for  the  regular 
quarter  due  July  ist,  1915,  and  ask  that  in  the  present 
situation,  the  representatives  of  the  public  take  the 
credentials  of  the  Cloak,  Suit  &  Skirt  Manufacturers 
Protective  Association  and  act  for  them.  We  have 
entire  confidence  in  the  management  and  in  the  work  of 
the  directors,  and  so  far  as  we  are  concerned  will  give  it 
our  fullest  support. 

Very  truly  yours. 
The  Executive  Committee. 
Chas.  Heineman, 
Chairman. 


THE  JOINT  BOARD  OF  SANITARY  CONTROL        51 

Dr.  Schieffelin  replied  as  follows: 

June  2ist,  1915. 

To  the  Executive  Committee  oj  the 
Cloak,  Suit  and  Skirt  Manufacturers'  Protective  Assn., 
Mr.  Charles  Heineman,  Chairman, 
200  Fifth  Avenue, 
New  York  City. 

Gentlemen: — 

The  representatives  of  the  public  on  the  Joint  Board  of 
Sanitary  Control  in  the  Cloak,  Suit  and  Skirt  Industry 
beg  to  acknowledge  receipt  of  your  courteous  letter  of 
June  nth,  enclosing  check  for  $1,250.00  and  requesting 
that  the  work  be  continued  by  us  for  the  Cloak,  Suit  and 
Skirt  Manufacturers'  Protective  Association. 

Owing  to  economies  of  Dr.  Price,  the  Director,  we  are 
glad  to  say  that  there  is  sufficient  money  in  the  treasury 
to  enable  us  to  continue  for  the  next  two  or  three  months 
without  contributions  from  either  side  heretofore  rep- 
resented in  the  Joint  Board  and  we  are  therefore  re- 
turning the  check.  When  the  funds  now  in  the  treasury 
are  exhausted  and  should  the  Cloak  and  Skirt  Makers' 
Union  also  indicate  its  desire  to  have  a  continuance  of 
the  Joint  Board  of  Sanitary  Control,  the  members 
representing  the  public  would  be  happy  to  serve  both 
organizations. 

We  beg  to  remind  your  Association  that  the  Joint 
Board  of  Sanitary  Control  owes  its  existence  to  the 
united  action  of  the  Manufacturers'  Association  and  the 
Cloak  and  Skirt  Makers'  Union  and  that  we  can  only 
act  under  a  joint  agreement  of  both. 

With  thardis  for  the  appreciation  you  expressed  for  the 


52  LAW  AND   ORDER   IN  INDUSTRY 

work  done  by  the  Joint  Board  of  Sanitary  Control,  I  beg 
to  remain, 

Very  truly  yours, 
(Signed)  William  Jay  Schiepfelin, 

Chairman. 

The  Board  lived  from  May  to  August  without  a  vestige 
of  legal  authority.  When  the  Mayor's  Council  of  Con- 
ciliation met  a  few  weeks  later  to  bring  about  a  renewal 
of  relations  (see  post,  i86)  the  first  question  put  by  the 
Chairman  was:  "Can  we  secure  the  consent  now  of 
both  parties  to  the  continuance  of  the  Joint  Board  of 
Sanitary  Control — regardless  of  what  else  may  be  the 
subject  of  controversy?"  And  both  sides  immediately 
answered  "Yes." 

In  outhning  the  union's  conception  of  the  valuable 
features  of  the  Protocol,  its  counsel  has  never  failed  to 
list  first  of  all  the  beneficent  work  of  this  institution. 
Under  the  jurisdiction  created  by  the  few  lines  in  the 
Protocol,  this  institution  had  raised  the  sanitary  stand- 
ards of  the  entire  city,  affecting  the  health  and  lives  of 
not  less  than  eighty  thousand  workers,  had  established 
a  system  of  regular  fire  drills,  a  system  of  careful  medical 
examination  for  the  workers  who  appHed  for  it,  had 
created  a  Sick  Benefit  Fund,  had  worked  out  measures 
for  fire  protection,  first  aid  to  the  injured,  had  studied 
a  plan  for  insurance  against  tuberculosis  and  other  in- 
fectious diseases,  and  had  given  instruction  in  hygiene 


THE  JOINT  BOARD  OF  SANITARY  CONTROL        53 

to  the  workers  themselves.     One  of  the  inspectors  (a 
former  leader  of  the  union)  writes  in  the  Bulletin: 

It  takes  a  good  many  arguments  to  convince  them  (the 
workers)  that  the  body  is  nourished  by  fresh  air,  cleanli- 
ness and  sunlight  as  well  as  food."  * 

Here,  then,  is  an  institution  which  has  demonstrated 
its  soundness  in  theory  and  its  utility  in  practice.  Side 
by  side,  other  institutions  created  by  the  Protocol  failed 
to  function  so  well.  Careful  study  and  comparison  of 
both  success  and  failure  would  seem  to  offer  a  fruitful 
method  for  arriving  at  sound  conclusions. 

It  is  no  part  of  the  work  of  this  volume — indeed,  the 
intent  of  the  author  is  quite  the  reverse — to  censure 
or  to  praise  individuals.  But  the  work  of  the  Board  of 
Sanitary  Control  cannot  be  understood  unless  we  un- 
derstand the  Director  f  and  his  view-point.  He  was 
brought  to  an  institution  that  existed  only  in  theory, 
just  as  our  U.  S.  Supreme  Court  existed  only  in  the 
minds  of  the  framers  of  the  Constitution  when  it  was 
signed.  It  was  pioneer  work.  He  came  first  as  one 
of  the  two  nominees  appointed  by  the  union;  very  soon 
thereafter,  at  the  request  of  the  two  representatives  of 
the  employers  and  the  three  representatives  of  the 
public,  he  became  the  authorized  acting  head,  with 

*  Rose  Sclineiderman. 
t  Dr.  George  M.  Price. 


54  LAW  AND   ORDER  IN  INDUSTRY 

the  title  of  Director.  From  the  very  outset,  the  in- 
stitution has  had  the  loyal  support  of  all  three  sides, 
time,  money  and  energy  being  freely  contributed.  The 
Director  was  a  medical  man — a  doctor  who  healed  sores — 
but  filled  with  a  desire  to  do  something  better  than 
alleviating  individual  cases  of  physical  distress.  To 
him  preventive  medicine  was  more  important  than  heal- 
ing the  sick.  Yet  he  had  been  a  Health  Department 
inspector  and  knew  the  practical  difficulties  of  factory 
hygiene.  The  Joint  Board  offered  to  him  a  great  oppor- 
tunity for  real  social  service,  and  incidentally  the  ful- 
fillment of  a  deep  personal  ambition.  He  gave  up  his 
private  practice  for  a  more  precarious  position.  (Who 
could  tell  how  long  the  Protocol  would  last?)  It  is 
but  simple  fairness  to  state  that  the  Board  owes  its 
unqualified  success  to  this  healer  of  sores. 

The  first  step  in  a  carefully  outlined  program  prepared 
by  him  was  to  make  a  careful  investigation  into  the 
facts.  Never  before  was  such  a  survey  made  of  any 
industry.  Conditions  were  found  to  be  bad — not  so 
bad  as  the  Doctor  found  later  in  other  industries  when, 
following  the  same  Hnes,  he  made  surveys  for  the  State 
Factory  Commission — but  bad  enough.  Before  the 
great  Asch  Building  fire,  the  Joint  Board  of  Sanitary 
Control  had  already  discovered  the  fire  traps  in  the 
cloak  industry  and  had  given  warning  to  the  municipal 
government. 


THE  JOINT  BOARD   OF  SANITARY   CONTROL         55 

After  investigation,  the  next  step  was  legislation — the 
making  of  an  Industrial  Code  of  Standards  for  the  indus- 
try by  the  parties  themselves.  Here  the  Board  went 
slow.  It  did  not  seek  to  bring  about  the  sanitary  mil- 
lennium aU  at  once.  To  illustrate  its  conservatism:  In 
1914  the  Director  appeared  before  the  State  Industrial 
Board  in  opposition  to  certain  standards  offered  for 
acceptance  by  that  Board,  because  in  his  opinion  they 
were  too  drastic  for  practical  utility.  The  standards 
he  recommended  in  19 10  were  accepted  by  all  parties, 
were  amended  and  improved  from  year  to  year,  and 
were  enforced.  How?  By  rigorous  semiannual  in- 
spection, by  using  the  discipHnary  power  of  both  or- 
ganizations, the  union  and  the  association,  by  using 
the  police  power  of  the  Labor,  Health  and  Fire  De- 
partments, and  by  education  of  employer  and  worker 
both. 

In  a  Bulletin  issued  by  the  Health  Commissioner  of 
New  York  City,  recommending  the  Board's  work  as  a 
model  for  similar  industries,  he  says: 

How  well  this  organization  has  succeeded  in  its  work 
can  best  be  judged  by  those  who  have  followed  from  time 
to  time  the  published  reports  of  its  work.  Certainly  the 
results  have  been  extremely  gratifying.  Perhaps  the 
most  important  progress  made  has  been  in  the  education 
of  both  workers  and  employers.  In  fact,  the  main 
difference  between  the  method  of  inspection  and  adminis- 
tration as  adopted  by  the  Board  of  Sanitary  Control  and 


56  LAW  AND  ORDER  IN  INDUSTRY 

as  conducted  by  State  Labor  Departments  lies  in  the 
fact  that  the  former  have  entirely  abolished  police  and  de- 
tective inspection.  The  object  has  not  been  to  catch  the 
manufacturer  in  a  violation  of  the  law  or  of  the  Board's 
regulations,  or  to  force  sanitation  upon  an  unwilHng  and 
unsympathetic  object  of  official  attention,  but  to  make 
employers  and  workers  recognize  the  fact  that  sanitary 
standards  are  beneficial  to  both.* 


The  Board  has  published  regular  Bulletins,!  giving 
outHnes  of  its  methods,  comparative  tables  showing 
the  progress  in  the  betterment  of  conditions;  it  has 
held  ^lectures,  mass  meetings,  and  has  distributed 
literature  widely  among  the  workers,  giving  them  sug- 
gestions for  the  better  care  of  their  health.  And  it 
has  none  but  friends;  employer,  worker  and  social  re- 
former all  cooperating  and  finding  in  their  task  a 
common  one. 

What  is  there  about  its  work  peculiar  or  unique  in 
effectiveness? 

There  has  been  pressure,  of  course,  brought  to  bear 
for  the  enforcement  of  standards,  but  no  coercion.  At 
no  time  was  there  in  evidence  a  poHceman's  club  of 
any  kind.  The  method  has  been  the  rational  method 
of  the  doctor,  the  educator  and  the  lawyer.    Compare 

*  Weekly  Bulletin  of  the  Department  of  Health,  City  of  New  York, 
November  14,  1914. 

t  Copies  can  be  had  upon  application  at  31  Union  Square,  New 
York  City. 


THE  JOINT  BOARD  OF  SANITARY  CONTROL         57 

its  methods  with  those  of  the  U.  S.  Commission  on 
Industrial  Relations.*  Then  compare  the  results.  No 
blare  of  trumpets,  no  denunciation  of  one  side  or  the 
other,  no  arousing  of  prejudices.  Just  a  plain  doctor 
or  lawyer-like  way  of  getting  of  the  facts:  diagnosis, 
then  a  doctor  or  lawyer-like  way  of  finding  a  remedy — 
mind  you,  with  full  recognition  of  all  the  psychological 
factors  involved — and  in  administering  the  job,  a  busi- 
ness man's  efficiency  producing  enough  small  economies 
to  make  the  average  business  man  stare.  A  combination 
of  the  world's  experience  in  sanitation  and  hygiene, 
brought  down  to  date,  with  a  practical,  business-like 
administration,  spurred  forward  by  a  deep  social  and 
humane  impulse. 

There  is  as  much  that  is  dramatic  about  such  an  insti- 
tution as  there  is  about  a  Red  Cross  hospital.  There  is 
more  exhilaration  to  be  found  in  flying  an  airship  over 
the  enemy's  camp,  but  here  is  the  longer-run  service, 
the  contribution  of  real  and  lasting  value.  I  venture 
the  prophecy  that  when  the  contributions  of  the  union 
to  social  progress  in  this  industry  are  inventoried  and 
appraised,  a  higher  mark  of  performance  and  merit 
will  be  given  to  the  doctor  nominated  as  its  first  repre- 
sentative than  to  the  various  and  sundry  persons,  who 
in  1907  and  1910  broke  the  law  and  some  one's  head 

*  See  editorial,  The  Short  Cut,  The  Nm  Republic,  September  18,  1915, 
p.  168. 


58  LAW  AND  ORDER  IN  INDUSTRY 

at  the  same  time,  moved,  I  make  no  doubt,  by  a  love 
for  their  fellows  no  whit  less  deep  than  the  Doctor's 
own. 

Quite  apart  from  the  great  advance  in  hygiene  and 
safety  in  the  industry  itself,  the  Board  set  the  example 
which  made  it  possible,  in  1913,  to  create  a  similar 
board  in  the  dress  and  waist  industry  (where  the  Asch 
Building  fire  occurred).  It  brought  about  the  State 
Industrial  Board  and  furnished,  as  the  Health  Com- 
missioner says,  the  very  necessary  example  for  all  other 
industries. 

But  it  did  more.  It  demonstrated  beyond  cavil  or 
criticism  what  can  be  done  when  employer,  worker  and 
public  jointly  utilize  and  utilize  intelligently  their  power 
to  accomphsh  a  common  purpose.  The  method  employed 
was  what  the  doctor  calls  the  scientific  method.  The 
lawyer  would  call  it  the  parliamentary  and  juridical 
method.  Get  at  the  truth  first  by  finding  and  dissecting 
the  evidence.  Do  it  with  no  prejudice  or  emotion.  Do 
not  blink  the  facts.  Hew  straight  to  the  hne.  Then 
apply  to  the  facts  the  best  principles  of  human  conduct 
you  can  find,  those  only  sustained  by  the  experience 
of  mankind.  Put  your  prescription  up  in  a  judicial 
decree  or  in  a  legislative  enactment.  And  where  you 
have  an  industry  in  process  of  self-regulation,  provide 
machinery  for  securing  judicial  and  legislative  determi- 
nation. 


THE  JOINT  BOARD   OF  SANITARY   CONTROL         59 

But  suppose  you  have  no  police  power  to  enforce  your 
decree  or  your  legislative  enactment? 

And  suppose  the  "principles  of  human  conduct" 
you  seek  to  apply  have  not  yet  been  discovered? 


6o 


LAW  AND  ORDER  IN  INDUSTRY 


FOUR    YEARS    PROGRESS 

IN    THE 

CLOAK  AND  SUiT  INDUSTRY 
1911—1914 

REDUCTION    OF   FIRE    DANOERS 

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CHAPTER  V 

THE  BOARD  OF  GRIEVANCES 

For  the  purpose  of  securing  some  kind  of  law  and 
order  in  the  industry  two  institutions  were  created, 
the  Board  of  Arbitration  *  and  the  Board  of  Grievances. 
It  is  but  fair  to  say  that  those  who  devised  the  scheme 
of  both  institutions  had  nothing  more  definite  in  mind 
than  the  acceptance  frankly  of  the  probability  of  con- 
troversy and  providing  some  ready  machinery  to  meet 
it  as  it  arose.  Was  it  practicable  to  create  machinery 
that  would  stand  the  strain  of  continuous  and  daily 
conflict?  No  one  then  beheved  that  in  the  succeeding 
four  and  one-half  years  the  jurisdiction  of  the  Board  of 
Arbitration  and  the  Board  of  Grievances  would  be  ex- 
ercised in  something  like  16,000  cases.  That  cases 
would  arise  and  that  they  could  not  be  rationally  settled 
by  either  the  method  of  the  strike  or  the  lockout  was 
clear  in  the  minds  of  the  lawyers  who  framed  the  Protocol. 
The  eighteenth  paragraph  of  the  Protocol  provided: 

The  parties  hereby  estabHsh  a  Committee  on  Griev- 
ances, consisting  of  four  members  composed  as  follows: 

*  See  paragraphs  XVI  and  XVII  of  the  Protocol. 
61 


62  LAW  AND  ORDER   IN  INDUSTRY 

Two  to  be  named  by  the  manufacturers  and  two  by  the 
unions.  To  said  committee  shall  be  submitted  all  minor 
grievances  arising  in  connection  with  the  business  rela- 
tions between  the  manufacturers  and  their  employees. 

It  will  be  observed  that  this  created  a  bi-partisan  board. 
Its  number  was  very  soon  increased  from  four  to  six 
on  each  side,  with  alternates.  Its  jurisdiction  was  not 
outlined  in  detail.  Whether  it  was  to  be  in  the  nature 
of  a  legislative  body,  a  conciliation  body,  or  a  judicial 
body  only  subsequent  events  could  and  did  determine. 
It  has  since  become  all  three.  Obviously  the  simplest 
cases  to  dispose  of  were  those  in  which  an  employer  had 
failed  to  observe  the  definite  standards  estabhshed  by 
the  Protocol.  He  had  worked  overtime  when  work  was 
prohibited,  or  he  had  worked  illegally  on  a  holiday  or  a 
Sunday,  or  he  had  paid  less  than  the  scale.  Such  cases 
presented  simple  questions  of  fact.  It  is  one  of  the 
striking  and  unique  experiences  of  the  workings  of  this 
Board  that  throughout  its  entire  experience  there  never 
was  a  deadlock  upon  a  question  of  fact.*  (This  statement 
was,  it  is  true,  controverted  during  the  years  191 2  and 
1 913  between  the  union  and  the  association,  and  since 
the  Board  of  Arbitration  was  unable  to  determine  the 
question  without  a  careful  investigation  into  the  records 
of  the  Board,  such  an  investigation  was  made  and  was 

*  See  Bulletin  144,  Bureau  of  Labor  Statistics,  Department  of  Labor, 
p.  38. 


THE  BOARD  OF  GRIEVANCES  63 

subsequently  adopted  officially  by  the  United  States 
Department  of  Labor.  It  is  now  known  as  Bulletin  144 
of  the  U.  S.  Department  of  Labor,  Bureau  of  Labor 
Statistics,  entitled,  "Lidustrial  Court  of  the  Cloak, 
Suit  and  Skirt  Industry  of  New  York  City."  It  demon- 
strates that  upon  questions  of  fact  the  parties  could 
and  did  come  to  an  agreement.) 

Bearing  in  mind  that  the  Board  had  no  chairman, 
theoretically  it  was  always  subject  to  deadlock.  Assum- 
ing that  the  representatives  of  the  union  would  always 
stand  by  their  member  and  that  the  representatives  of 
the  employers'  association  would  stand  by  theirs,  there 
was  a  strong  theoretical  probability  of  deadlock.  But 
it  is  a  high  tribute  to  the  resourcefulness  of  both  sides 
that  such  deadlocks  never,  in  fact,  occurred.  Acute 
controversy  in  the  Board  of  Grievances  and  deadlock 
raged  about  more  fundamental  matters,  matters  of 
principle,  or  as  they  were  called.  Protocol  Law;  but  for 
the  solution  of  such  controversies  the  Board  of  Arbitra- 
tion was  created.  The  very  first  session  of  the  Board 
of  Arbitration  in  March,  191 1,  was  devoted  to  a  careful 
study  of  such  fundamental  matters  and  incidentally 
of  the  work  of  the  Board  of  Grievances.  Before  the 
Board  of  Arbitration  the  association  charged  that  the 
provisions  against  strike  had  been  repeatedly  violated 
by  members  of  the  union  without  redress  on  the  part 
of  the  employers.    On  the  other  hand,  the  imion  charged 


64  LAW  AND  ORDER  IN  INDUSTRY 

that  they  had  failed  to  secure  adequate  redress  for  com- 
plaints in  "discharge  cases."  On  March  14,  191 1,  the 
Board  of  Arbitration  *  rendered  a  decision  upon  these 
points  and  formulated,  with  the  aid  of  counsel  for  both 
sides,  "Rules  and  Plan  of  Procedure  of  the  Board  of 
Grievances."  This  was  the  first  constitution  or  by-laws 
of  the  Board  of  Grievances.  In  its  decision,  the  Board 
of  Arbitration,  speaking  of  the  workings  of  the  Protocol, 
stated  (March,  191 1): 

From  the  evidence  submitted  upon  this  hearing  and 
the  statement  of  counsel  for  both  sides,  the  Board  is 
convinced  that  the  Protocol  has  during  the  six  months 
of  its  operation  fully  justified  the  expectations  of  its 
drafters,  and  that  its  operations  have  on  the  whole  had  a 
most  beneficial  effect  upon  the  relations  of  the  employers 
and  employees  in  the  cloak  industry. 

After  reviewing  and  praising  the  work  of  the  Board  of 
Sanitary  Control  (it  had  made  its  first  report),  the 
Board  said: 

The  work  of  the  Grievance  Committee,  on  the  other 
hand,  has  not  been  as  successful  as  that  of  the  Sanitary 
Board. 

Why?    The  Board  answers: 

.  .  .  the  fault  for  the  defective  operation  of  the 
Committee  does  not  Ue  with  its  members  or  with  the 

*  Then  consisting  of  Louis  D.  Brandeis,  Hamilton  Holt,  and  Morris 
Hillquit. 


THE  BOARD  OF   GRIEVANCES  65 

spirit  in  which  the  proceedings  were  conducted.  On  the 
contrary,  it  appears  that  the  members  of  the  Committee, 
representatives  of  both  sides  to  the  Protocol,  were  at  all 
times  animated  by  a  sincere  and  earnest  desire  to  adjust 
all  grievances  brought  before  them  promptly  and  equita- 
bly, and  as  a  matter  of  fact,  they  have  succeeded  in 
adjusting  disputes  in  a  very  large  number  of  individual 
cases  to  the  satisfaction  of  all  parties  concerned  in  such 
disputes. 

The  Board  refers  to  the  fact  that  in  six  months  no  less 
than  119  cases  were  brought  before  the  Grievance  Com- 
mittee, and  that  of  this  number  107  had  been  adjusted, 
and  only  twelve  were  pending  at  the  time  of  the  hearings 
before  the  Board  of  Arbitration.    It  finds  that: 

The  decisions  in  all  cases  were  unanimous  or  nearly  so, 
and  there  seem  to  have  been  no  serious  divisions  between 
the  representatives  of  employers  and  employees  in  any 
case. 

Now  note  the  following  observation  by  the  Board  of 
Arbitration : 

But  the  Grievance  Committee  when  established  by  the 
Protocol,  was  largely  an  experiment.  The  Protocol  was 
very  meager  on  the  question  of  the  jurisdiction  of  the 
Committee,  and  wholly  failed  to  provide  for  proper  rules 
of  its  procedure. 

Of  course,  if  at  the  time  of  the  signing  of  the  Protocol 
the  draughtsmen  had  stopped  to  agree  upon  a  set  of 
rules  for  the  Board  of  Grievances,  the  strike  would  not 


66  LAW  AND   ORDER  IN   INDUSTRY 

have  been  settled — there  would  have  been  no  Protocol. 
Says  the  Board  further: 

The  Grievance  Committee  thus  had  to  evolve  its  own 
methods  in  the  Hght  of  its  experience  and  the  exigencies  of 
the  situation  as  they  arose  from  time  to  time. 

It  found  that  the  Committee  had  endeavored  "to  adopt 
a  complete  and  comprehensive  set  of  rules  of  procedure 
for  the  Committee,  but  in  that  attempt  certain  differ- 
ences of  opinion  (had)  developed  between  counsel  for 
both  sides."  These  differences  of  opinion  the  Board  of 
Arbitration  took  up  and  disposed  of. 

Its  final  disposition  was  the  establishment  of  the  rules 
(Appendix  B).  The  differences  between  the  parties 
thus  disposed  of  were  important.  They  related  to  the 
enforcement  of  the  provisions  of  the  Protocol  prohibiting 
shop  strikes,  and  to  the  method  of  investigation  into 
shop  disputes.  In  short,  the  differences  of  opinion  pre- 
sented the  problem  of  enforcement  of  the  law  and  re- 
quired again  the  invention  of  rational  and  simple  ma- 
chinery. There  were  no  precedents  to  go  by.  For  the 
enforcement  of  the  law  the  following  provisions  were 
finally  adopted  as  sections  XVII,  XVIII  and  XIX  of 
the  Rules  and  Plan  of  Procedure  of  the  Board: 

XVII.  If  a  grievance  arises  because  of  the  general 
stoppage  of  work  of  a  shop  or  department  of  a  shop, 
either  by  direction  of  the  employer  or  because  of  or  by 


THE  BOARD  OF  GRIEVANCES  67 

the  concurrent  action  of  the  employees,  upon  complaint 
received,  the  clerks,  or  their  deputies,  shall  immediately 
proceed  to  the  shop  or  department  where  the  trouble 
occurs.  If  the  employer  is  responsible  for  the  stoppage, 
he  shall,  upon  the  demand  of  the  clerks,  or  their  deputies, 
immediately  recall  all  his  employees,  pending  the  adjust- 
ment by  the  Board  of  any  grievance  he  may  have,  and  he 
shall  thereupon  frame  and  present  his  grievance;  if  the 
employees  are  responsible  for  the  stoppage,  notice  shall 
be  immediately  given  to  them  to  return  to  work  pending 
adjustment  of  the  grievance  by  the  Board  and  the  chair- 
man of  the  Price  Committee  shall  immediately  direct 
them  to  return  to  work. 

XVIII.  A  violation  of  the  provision  of  Section  XVII 
of  these  rules  or  of  Section  XVII  of  the  Protocol,  by  either 
employer  or  employee,  shall  constitute  a  grievance  to  be 
presented  to  the  Board  of  Grievances.  If,  after  hearing, 
the  Board  finds  the  defendant  guilty,  the  order  of  the 
Board  shall  be  made  the  basis  of  prompt  discipHne  in  the 
Association  or  the  Unions  as  the  case  may  be.  Such 
discipHne  shall  consist  of  a  suitable  fine  or  expulsion. 
The  action  so  taken  shall  forthwith  be  reported  in  writing 
to  the  Board  of  Grievances. 

Under  these  rules  the  name  of  the  tribunal  was  changed 
from  "Committee"  to  "Board  of  Grievances." 

Upon  this  branch  of  the  subject,  it  will  be  observed, 
reliance  is  placed  entirely  upon  the  enforcement  of  the 
law  by  the  party  whose  member  offends.  This  principle 
of  enforcement  appHes  to  each  side.  The  association  is 
to  discipline  its  own  member  guilty  of  violating  the  law; 
the  union  is  to  discipline  its  own  member  guilty  of  vie- 


68  LAW  AND  ORDER  IN  INDUSTRY 

lating  the  law.  Each  reserves  the  right  of  trial  of  its 
own  members.  Note  here  the  distinction  in  method 
between  the  workings  of  the  Board  of  Sanitary  Control 
and  the  Board  of  Grievances:  The  Board  of  Sanitary 
Control  could  call  to  its  assistance  the  powers  of  the 
State  and  the  municipality  and  could  bring  to  bear 
the  pressure  of  public  opinion.  But  for  the  suppression 
of  the  shop  strike  or  the  enforcement  of  Protocol  stand- 
ards upon  members  of  the  association,  each  of  the  parties 
to  the  agreement  is  dependent  upon  the  other  for  the 
exercise-  in  good  faith  of  such  pressure  as  it  can  bring 
to  bear  upon  its  own  member.  For  the  enforcement 
of  standards  upon  employers  not  members  of  the  asso- 
ciation, the  latter  is  dependent  wholly  upon  the  imion. 
How  far  this  proved  effective  we  shall  see  later. 

Upon  the  other  branch  of  the  controversy  presented 
to  the  Board  of  Arbitration,  namely,  the  method  to  be 
employed  for  ascertaining  the  facts  and  adjusting  an 
ordinary  shop  controversy,  there  was  devised  the  sys- 
tem of  shop  investigation  by  clerks  and  deputy  clerks. 
This  introduced  an  entirely  new  system,  copied,  so  far 
as  I  know,  from  no  other  experience  and  later  the  sub- 
ject of  much  controversy  and  criticism.  It  will  bear 
careful  analysis. 


CHAPTER  VI 

THE   CHIEF   CLERKS  AND   THE   DEPUTIES 

The  March,  191 1,  session  of  the  Board  of  Arbitra- 
tion involved  debate  over  a  rule  proposed  by  the  unions, 
which  meant  in  effect  the  authorization  of  the  repre- 
sentatives of  the  unions  or  any  persons  designated  by 
them  to  inspect  shops,  even  where  no  charge  had  been 
lodged  against  the  employer,  in  order,  as  stated  by  the 
union,  to  ascertain  whether  the  provisions  of  the  Proto- 
col were  being  lived  up  to  in  such  shops,  and  in  order 
also  to  afford  the  unions  an  opportunity  to  investigate 
informal  complaints,  so  as  to  determine  whether  they 
should  be  brought  before  the  Grievance  Committee. 
On  behalf  of  the  unions  it  was  contended  that  in  the 
absence  of  such  a  rule  complete  justice  could  not  be 
done  to  the  employees,  for  the  reason  that  many  of 
them  would  fail  to  present  grievances,  even  if  they  were 
fully  justified,  for  fear  of  being  disciplined  by  the  em- 
ployer; and  that,  on  the  other  hand,  a  preliminary  in- 
vestigation by  the  union  representatives  would  avoid 
bringing  before  the  Grievance  Committee  trivial  com- 
plaints. The  employers,  on  the  other  side,  asserted 
that  such  a  rule  would  result  in  frequent  and  arbitrary 

69 


70  LAW  AND  ORDER  IN  INDUSTRY 

visits  of  union  representatives  in  the  shops,  would  stimu- 
late unnecessary  complaints,  disturb  shop  routine  and 
cause  needless  friction  between  the  employers  and  the 
employees.  In  short,  they  saw  in  the  proposal  of  the 
union  the  reestablishment  of  the  old-fashioned  walking 
delegate.  Doubtless  the  union  had  good  reason  for 
beheving  in  the  efficacy  of  the  system  it  proposed.  It 
seemed  simple.  Upon  complaint  of  any  member  of 
the  union  the  walking  delegate  would  appear  and  en- 
deavor to  adjust  the  matter  with  the  employer.  If  he 
failed,- a  shop  strike  would  ensue.  But  usually  the  effect- 
iveness of  the  threat  was  the  determining  factor  in 
the  adjustment  of  the  case.  If  the  walking  delegate 
were  of  a  conciHatory  temperament  and  the  employer 
was  disposed  to  be  fair,  there  might  be  httle  difficulty. 
On  the  other  hand,  if  the  walking  delegate  felt  called 
upon  always  to  fight  for  his  side,  the  employer  could 
not  secure  fair  treatment,  and  there  would  be  constant 
conflict.  Justice  would  be  administered,  then,  upon 
the  basis  of  the  temporary  strength  and  weaknesses  of 
the  contestants  and  not  upon  the  real  merits  of  the 
controversy.  Naturally,  such  a  plan  was  not  acceptable. 
The  Board  of  Arbitration,  to  meet  both  sides'  re- 
quirements, adopted  the  method  now  outhned  in  Rules 
IV  and  XI  (Appendix  B).  In  brief,  this  system  provides 
first  for  the  submission  of  a  complaint  in  writing  by 
the  organization  whose  member  is  aggrieved  to  the 


THE   CHIEF   CLERKS   AND   THE   DEPUTIES  7 1 

organization  whose  member  is  complained  of;  then  an 
investigation  into  the  facts  at  the  shops  by  representa- 
tives of  both  sides,  attending  at  the  same  time,  these 
representatives  (the  clerks)  endeavoring  to  ascertain 
the  truth,  and  as  often  as  practicable  coming  to  a  joint 
verdict  upon  the  evidence;  finally,  an  adjustment  of 
the  difficulty  by  them,  if  an  adjustment  can  be  arrived 
at.  If  the  clerks  agree,  it  is  an  end  to  the  case,  except 
that  the  employer  may  appeal  to  the  Board  of  Grievances. 
If  the  clerks  deadlock,  the  matter  then  comes  to  the 
Board  of  Grievances  for  its  consideration.  Under  this 
system  some  fourteen  or  fifteen  thousand  complaints 
were  Uquidated. 

This  system  has  been  carefully  studied.  In  May, 
1913,  the  union  having  requested  an  amendment  to 
the  Protocol  which  would  provide  for  an  additional 
person  to  be  known  as  the  ''Impartial  Referee"  to  sit 
with  the  Board  of  Grievances,  the  union  contended 
that  it  did  not  receive  adequate  justice  under  the  exist- 
ing procedure.  The  manufacturers'  association  denied 
the  charge,  contending  that  the  claim  of  the  unions 
could  easily  be  disproved  "by  an  examination  of  the 
records  of  the  board  of  grievances;  that  the  system 
proposed  by  the  unions  would  be  destructive  of  the 
existing  system  of  arbitration  and  conciliation,  and 
would  practically  put  the  control  of  the  industry  in  the 
hands  of  a  single  outside  person.  ..."     The  parties 


72  LAW  AND  ORDER  IN  INDUSTRY 

having  deadlocked  on  this  point,  an  appeal  was  taken 
to  the  Board  of  Arbitration  under  Rule  XXI.  After 
numerous  hearings  before  the  Board,  that  body  decided 
that  before  it  could  arrive  at  any  decision  it  would  make 
a  careful  study  of  the  workings  of  the  Board  of  Griev- 
ances, and  thus  reveal  the  nature  and  disposition  of 
the  cases  it  had  passed  upon,  and  "further  to  reveal 
the  efficiency  of  this  organization  in  fulfilling  its  primary 
functions,  viz.,  administering  justice  in  the  industry, 
supervising  the  adjustment  of  grievances  by  the  clerks, 
and  adjusting  aggravated  cases  upon  which  the  clerks 
could  not  reach  a  decision."  This  investigation  was 
carried  on  by  the  same  representative  of  the  U.  S.  Gov- 
ernment *  who  in  191 2  had  made  a  study  of  the  industry 
for  the  United  States  Department  of  Labor.f  His  re- 
port is  Bulletin  144,  already  alluded  to.  It  contains 
in  detail  an  analysis  of  the  work  of  the  Board  of  Griev- 
ances, a  statement  of  the  quality  of  the  legislative  and 
judicial  work  done  by  the  Board,  and  an  analysis  of  the 
character  of  cases  adjudicated  upon  by  the  clerks  and 
by  the  Board  of  Grievances.  The  investigation  dis- 
closed that  out  of  a  total  of  7,656  complaints  filed  be- 
tween April  15,  191 1,  the  date  of  the  creation  of  the 
Board  of  Grievances,  and  October  31,  1913,  7,477,  or 
97.7  per  cent,  were  adjusted  by  the  clerks.    The  balance, 

*  Charles  H.  Winslow. 
t  Bulletin  98. 


THE  CHIEF  CLERKS  AND  THE  DEPUTIES  73 

179,  or  2.T,  per  cent,  were  handled  by  the  Board  of  Griev- 
ances. Of  the  latter  group,  159  were  settled  by  the 
Board.  The  remaining  20,  the  Board  being  unable  to 
agree,  were  referred  to  the  Board  of  Arbitration  for 
final  adjudication.  Of  these  20  cases,  12  involved  the 
same  disputed  point — a  controversy  over  the  inter- 
pretation of  the  Protocol  as  to  the  payment  for  a 
holiday.  As  this  involved  a  question  of  interpreta- 
tion which  could  be  passed  upon  finally  only  by  the 
Board  of  Arbitration,  it  left  but  9  actually  deadlocked 
cases.  In  other  words,  one-tenth  of  one  per  cent  of  all 
the  cases  that  arose  during  the  entire  period  of  the 
existence  of  the  Protocol  up  to  that  time  were  dead- 
locked in  the  Board  of  Grievances.  Of  these  nine  cases, 
the  investigation  showed  that  they  were  cases  involving 
serious  and  fundamental  differences. 

The  fijidings  of  this  investigation  establish  that,  upon 
the  whole,  the  system  devised  in  191 1  worked  satisfac- 
torily in  99  per  cent  of  the  cases;  yet  because  of  the 
I  per  cent  it  broke  down  partially  in  19 13  and  com- 
pletely in  191 5.    Why? 


CHAPTER  VII 


A   SIDELIGHT 


Before  proceeding  further  with  the  study  of  the 
cloak  and  suit  industry,  let  us  turn  to  another  experiment 
in  another  city,  in  an  industry  very  similar,  though  not 
precisely  the  same,  but  which  owes  its  machinery  in 
very  large  measure  to  the  experiences  in  the  New  York 
cloak  and  suit  industry.  It  is  the  story  of  the  four  years' 
experience  of  a  clothing  firm  of  national  reputation,* 
synchronizing  in  time  and  method  with  the  experiences 
we  are  studying  here.  The  experience  has  been  graphi- 
cally reviewed  under  the  title  "A  Way  to  Industrial 
Peace."  t  In  191 1  a  strike  affecting  the  entire  men's 
clothing  industry  in  Chicago  and  involving  fifty  thousand 
people  broke  out.  The  strike  was  settled,  so  far  as  the 
one  firm  in  question  was  concerned,  by  the  estabHsh- 
ment  of  an  arbitration  committee  of  three,  one  selected 
by  the  firm,  one  by  the  workers,  and  the  two  choosing  a 
third.  Provision  was  made  that,  "Said  committee  shall 
consider  and  adjust  whatever  grievances  employees  may 
have,  and  shall  fix  a  method  of  settlement  of  grievances 

*  Hart,  Schaffner  and  Marx, 
t  George  Creel:  The  Century,  July,  1915. 

74 


A  SIDELIGHT  75 

in  the  future,  findings  to  be  binding  on  both  parties."  * 
On  March  13th  this  Board  of  Arbitration  handed  down 
a  decision  which  contained  the  following  paragraph: 

As  to  any  future  grievances,  the  firm  shall  establish 
some  method  of  handling  such  grievances  through  some 
person  or  persons  in  its  employ,  and  any  employee,  either 
by  himself  or  an  individual  fellow  worker,  shall  have  the 
right  to  present  any  grievance  at  any  reasonable  time, 
and  such  grievance  shall  be  promptly  considered  by 
the  person  or  persons  appointed  by  said  firm,  and  in  case 
such  grievance  shall  not  be  adjusted,  the  person  feeling 
himself  so  aggrieved  shall  have  the  right  to  apply  to  some 
member  of  said  firm  for  adjustment  of  said  grievance, 
and  in  case  the  same  shall  not  be  adjusted,  such  grievance 
may  be  presented  to  Clarence  Darrow  and  Carl  Meyer, 
who  shall  be  constituted  as  a  permanent  board  of  arbi- 
tration to  settle  any  questions  that  may  arise  between 
any  of  the  employees  and  said  firm,  for  the  term  of  two 
years  from  April  i,  191  i.j 

After  studying  the  New  York  experience  the  employers 
established  a  labor  department  and  placed  in  charge  a 
trained  economist  and  industrial  expert.  To  this  depart- 
ment was  given  over  the  handHng  of  all  grievances.  The 
work  of  the  Board  of  Arbitration  became  so  engrossing 
that  it  was  soon  found  necessary  to  establish  a  sub- 
ordinate tribunal.     This  tribunal  consisted  of  a  trade 

*  George  Creel:  A  Way  to  Industrial  Peace,  The  Century,  July, 
191S,  P-  436. 


76  LAW  AND  ORDER  IN  INDUSTRY 

court,  composed  of  five  foremen,  five  workers,  and  an 
impartial  umpire.  The  head  of  the  labor  department 
for  the  employers  became  one  of  the  two  chief  clerks  of 
this  board.  The  leader  of  the  union  became  the  other 
chief  clerk.  In  1913  the  same  controversy  that  arose  in 
the  New  York  cloak  strike  in  1910  came  up,  the  fight 
of  the  union  for  the  closed  shop.  The  position  of  the 
employers  was  stated  by  the  head  of  the  firm  as  follows: 

As  long  as  the  unions  are  working  toward  the  ideal  of 
justice  to  every  interest  connected  with  the  institution 
and  the  highest  economic  efficiency — performing  duty 
to  everybody  inside  and  outside  the  institution — em- 
ployees, stockholders,  customers,  and  the  general  public, 
we  wish  to  see  them  strong.  Because  there  is  no  guaranty 
that  those  who  control  the  unions  will  hold  to  this  ideal, 
we  do  not  care  to  be  committed  to  the  "closed  shop."  * 

After  careful  study  of  the  workings  of  the  preferential 
union  shop  in  New  York,  the  parties  agreed  upon  the 
following  tentative  working  basis: 

That  the  firm  agrees  to  this  principle  of  preference: 
they  will  agree  to  prefer  union  men  in  the  hiring  of  new 
employees,  subject  to  reasonable  restrictions,  and  also 
to  prefer  union  men  in  dismissal  on  account  of  slack 
work,  subject  to  a  reasonable  preference  to  older  em- 
ployees, to  be  arranged  by  the  board  of  arbitration,  it 
being  understood  that  all  who  have  worked  for  the  firm 
six  months  shall  be  considered  old  employees.* 

*  George  Creel:  A  Way  to  lodustrial  Peace,  The  Century,  July,  1915, 
p.  438. 


A   SIDELIGHT  77 

The  Board  of  Arbitration  held  also  that  the  door  of  the 
union  must  be  kept  open  for  the  reception  of  non-union 
workers;  that  initiation  fees  and  dues  must  be  main- 
tained at  a  reasonable  rate,  and  that  if  any  rules  be 
passed  that  impose  unreasonable  hardship  or  that  operate 
to  bar  desirable  persons,  there  may  be  instant  appeal 
to  the  Trade  Board  or  to  the  Board  of  Arbitration. 

The  verdict  upon  the  experience  in  this  industry  is 
stated  in  the  language  of  the  head  of  the  firm: 

Industrial  peace  will  never  come  so  long  as  either 
employer  or  employee  believes  that  he  is  being  deprived 
of  rights  honestly  belonging  to  him. 

Arbitration  and  conciliation  should  be  applied  to  all 
departments  of  a  business  wherever  there  is  a  conflict 
of  interest.  If  nothing  more,  it  insures  exhaustive  dis- 
cussion of  every  matter  of  importance,  gives  everybody 
an  opportunity  to  express  his  opinions,  frequently  brings 
to  light  valuable  suggestions,  and  makes  possible  a  higher 
degree  of  cooperation  and  team-work.  It  is  a  method  to 
be  employed  continuously  to  secure  harmony  and  satis- 
faction. 

Patience  and  self-control  are  essential  in  administering 
a  business  on  this  basis.  It  is  human  nature  to  resent 
interference  and  to  desire  unrestricted  Hberty  of  action, 
but  these  conditions  are  not  necessary  and  are  often 
inimical  to  true  success.  Few  men  can  use  unlimited 
power  wisely,  and  no  wise  man  will  dispense  with  checks 
which  tend  to  keep  him  in  the  right  path;  certainly  he 
will  approve  of  checks  calculated  to  restrain  his  agents 
from  arbitrary  and  unjust  acts  to  fellow  employees.  I 
have  found  that  disputes  once  settled,  even  if  one  side 


78  LAW  AND  ORDER  IN  INDUSTRY 

loses,  are  seldom  causes  of  trouble.  It  is  the  unsettled 
disputes  that  are  dangerous.  This  failure  of  adjustment 
is  largely  due  to  the  lack  of  means  for  determining  what 
is  right  or  wrong,  the  lack  of  a  common  code,  and  the 
absence  of  a  disinterested  authority  whose  judgment  is 
respected  by  both  sides. 

We  did  not  realize,  and  we  believe  the  majority  of 
employers  do  not  yet  realize,  the  extent  to  which  the 
attitude  and  conduct  of  their  organized  employees  reflect 
their  own  policies  and  conduct. 

In  our  own  business,  employing  thousands  of  persons, 
some  of  them  newly  arrived  immigrants,  many  of  them 
in  opposition  to  the  wage  system  and  hostile  to  em- 
ployers as  a  class,  we  have  observed  astonishing  changes 
in  their  attitude  during  the  four  years  under  the  influence 
of  our  labor  arrangement.  They  have  come  to  feel  that 
they  can  rely  upon  promises  made  by  the  company, 
and  that  justice  will  be  done  them  by  a  system  in  which 
they  themselves  have  a  voice;  and  as  a  result,  they  are 
proud  of  their  own  honor,  careful  of  their  promises,  and 
equally  eager  for  justice  to  all.* 

I  heard  this  gentleman  testify  during  the  winter  of 

1914  before  the  United  States  Commission  on  Industrial 

Relations,  and  I  heard  him  say  then  that  he  would  not 

care  to  go  back  to  the  old  system  for  any  price.    I  know 

from  personal  inquiry  and  study  of  the  reports  of  the 

firm  that  there  is  increased  efficiency  and  productivity, 

higher  wages  and  larger  dividends.    From  both  employer 

and  union  leader  I  have  learned  that  the  system  works 

*  George  Creel:  A  Way  to  Industrial  Peace,  The  Century,  July, 
1915,  P-  440- 


A  SIDELIGHT  79 

to  the  complete  satisfaction  of  both.  The  representa- 
tive of  the  union  in  Chicago  was,  in  1914,  called  to  New 
York  to  take  charge  for  the  Cloakmakers'  Union  of 
their  interests,  and  would  have  continued,  if  he  had 
not  been  called  away  to  become  the  leader  of  the  Amal- 
gamated Clothing  Workers  of  America,  a  new  and  in- 
surgent organization  with  a  membership  close  to  one 
hundred  thousand,  made  up  of  clothing  workers  in  the 
men's  line.  In  1913,  when  I  intimated  to  the  head  of 
the  firm  that  the  Chicago  union  leader  with  whom  he 
dealt  might  be  called  to  New  York  to  take  active  part 
in  the  cloak  situation,  he  told  me  that  he  would  regard 
it  as  a  distinct  loss  to  Chicago,  for,  as  he  put  it,  it  was 
due  to  the  union  leader's  common  sense  and  fair  way  of 
handling  matters  that  the  collective  agreement  had 
worked  so  well.  He  modestly  refrained  from  mentioning 
his  own  part.  Notwithstanding  this  approval  on  the 
part  of  the  employer,  this  young  leader  retained  the  sup- 
port and  confidence  of  his  own  constituents,  and,  more- 
over, as  I  have  stated,  was  later  elected  to  the  highest 
position  to  which  they  could  advance  him.* 

The  principles  underlying  the  Chicago  experience 
were  the  same  as  those  underlying  the  New  York  ex- 
perience. The  machinery  in  each  case  was  substantially 
the  same.  A  Trade  Board  (Board  of  Grievances),  a 
Board  of  Arbitration,  and  the  dual  clerk  method  of 
*  Sidney  Hillman. 


8o  LAW  AND  ORDER  IN  INDUSTRY 

investigation  and  conciliation;  the  preferential  union 
shop  and  joint  working  of  union  and  employer,  with  an 
agreement  to  substitute  the  methods  of  reason  and  or- 
der for  the  strike  and  lockout.  In  the  Chicago  instance 
we  find  the  system  working  to  the  complete  satisfaction 
of  the  employer,  the  union  and  the  public.  It  is  a  busi- 
ness as  well  as  a  social  success.  In  New  York  it  does 
not  achieve  the  same  complete  result.  Why  not?  If 
we  find  in  the  one  case  factors  absent  in  the  other,  it 
may  give  the  clew  to  the  completer  explanation. 

Observe  that  the  Chicago  firm  had  a  monopoly  of  a 
brand.  Its  name  had  been  blazoned  forth  in  magazine 
and  newspaper  pages  for  over  a  decade.  It  had  boldly 
come  to  New  York  and  challenged  competition  with 
the  best  of  its  New  York  competitors  upon  their  own 
ground.  Its  brand  or  trade-name  had  cost — I  am  sure — 
at  least  a  million  dollars  of  advertising.  It  had  keen 
competition,  to  be  sure,  but  in  addition  to  its  appHcation 
of  modern  methods  of  salesmanship  to  its  business,  it 
had  introduced  efficiency  methods  into  its  factory. 

Observe  that  it  was  one  firm  dealing  with  a  union — 
not  two  or  three  hundred  different  employers  of  varying 
ideals,  education  and  business  training.  The  head  of 
the  house  and  the  union  leader  dealing  with  each  other 
single-handed  and  when  these  two  agree,  the  policy 
settled;  moreover,  certain  to  be  carried  out;  no  short 
circuiting  and  no  crossing  of  wires.     From  the  public 


A   SIDELIGHT  8l 

utterances  of  the  head  of  the  house  we  learn  that  he 
began  by  distrusting  collective  bargaining  and  ended, 
by  slow  degrees,  in  a  plan  to  strengthen  the  union.  He 
found  it  to  the  business  interest  of  his  firm  to  accord 
the  fullest  cooperation  to  the  union  leader.  Observe 
that  he  must  meet  the  keen  competition  not  only  of  his 
Chicago  associates  but  the  competition  of  New  York, 
Rochester  and  Baltimore.  Yet  he  freely  admits  that 
he  finds  it  much  easier  to  work  alone  than  to  work  in 
association  with  a  group  of  his  competitors.  Observe, 
also,  that  the  competition  is  the  competition  of  large 
units,  not  small  ones,  where  the  strike  is  a  more  effective 
weapon.  Observe  that  the  same  union  leader  represented 
the  union  in  its  dealing  with  the  competitor  shops,  and 
the  same  standards  are  effectively  maintained  through- 
out the  entire  city. 

Note  the  type  of  men  on  both  sides.  The  head  of  the 
house,  a  man  of  education,  of  faith  and  of  vision,  and 
open  to  reason;  the  union  leader,  a  man  of  faith  and  of 
vision,  and  open  to  reason,  the  latter  outspoken  in  his  dis- 
approval of  violence  and  all  other  kinds  of  law  breaking, 
courting  the  approval  of  the  disinterested  public  and 
trusting  entirely  to  the  reasonableness  of  the  positions 
he  takes  to  win  their  way,  never  blatant,  never  threaten- 
ing, never  coercive,  quietly  persistent  and  absolutely 
trustworthy  in  his  statements  and  in  his  promises. 
Though  it  is  known  throughout  Chicago  that  he  and  the 


82  LAW  AND  ORDER  IN  INDUSTRY 

head  of  the  house  are  in  frequent  intimate  consultation, 
he  retains,  as  we  observe,  the  entire  confidence  of  a  union 
made  up  of  more  than  a  dozen  different  nationahties — to 
such  an  extent  that  later,  with  no  effort  on  his  part,  in- 
deed, without  his  preknowledge,  he  is  chosen  the  national 
leader  of  the  tailors.  He  trusts  the  head  of  the  house 
and  the  head  of  the  house  trusts  him.  Each  carries 
out  his  promises  to  the  other.  The  head  of  the  house, 
a  man  open  to  every  new  idea  that  can  be  tested  by  the 
standards  of  common  sense.  There  is  no  newspaper 
agitation  against  the  employer,  no  klassenkampf.  There 
is  a  joint  effort,  by  methods  of  reason,  to  achieve  a 
common  object:  to  improve  the  industry  and  thus  im- 
prove the  condition  of  the  workers.  The  Chicago  ma- 
chinery moves  with  the  same  smoothness  as  does  the 
machinery  of  the  Joint  Board  of  Sanitary  Control  in 
New  York.  The  joint  work  of  the  head  of  the  house 
and  the  union  leader  in  Chicago  bears  striking  resem- 
blance to  the  work  of  the  Director  of  the  Sanitary  Board 
in  New  York. 

Perhaps  we  have  gone  far  enough  to  set  down  for  sub- 
sequent test  at  least  three  hypotheses  consistent  with 
the  facts  in  the  Chicago  situation : 

I.  Given  institutions  for  preserving  law  and  order  in 
industry  and  for  improving  the  welfare  of  the  industry,  the 
enterprise  will  prove  valuable  to  employer  and  worker  alike, 
provided  it  is  carried  out  in  a  spirit  of  mutual  helpfulness 


A  SIDELIGHT  83 

and  with  a  recognition  of  the  business  factors  in  the  joint 
problem.  Given  leaders  on  both  sides  who  trust  each  other, 
the  underlying  spirit  of  the  institutions  will  find  expres- 
sion in  day  to  day  progress. 

2.  Let  either  side  seek  to  impose  its  will  upon  the  other 
by  coercion;  let  either  side  play  unfair,  and  the  institu- 
tions— however  well-planned — will  crumble  and  fall. 

3.  The  consumer  is  an  important  factor  in  the  problem. 


CHAPTER  VIII 

THE  NEW  YORK  CLOAK  BUSINESS 

The  competition  between  the  man's  personally  se- 
lected tailor  and  the  manufacturer  of  ready-to-wear 
garments  is  less  than  fifty  years  old.  The  Civil  War 
created  a  demand  for  military  garments  in  large  quanti- 
ties to  be  made  up  on  short-time  requisitions.  This 
stimulated  cutting  many  garments  with  one  cut  of  the 
shears,  and  the  experience  led  to  the  manufacture  in 
large  quantities  of  cheap  civihan  clothes  ready  to  *'put 
on  your  back,"  cheaper  than  you  could  buy  them  at 
the  tailor's.  It  is  within  the  memory  of  the  present  gen- 
eration that  handsome  college  youths  first  appeared  on 
magazine  pages  wearing  immaculately  fitting  dress  suits, 
or  tennis  coats,  or  warm  ulsters,  and  bade  us  discharge 
our  tailors.  From  these  advertisings  grew  the  great 
men's  clothing  manufacturers  whose  brands  are  now 
known  throughout  the  entire  country,  even  abroad. 

A  half  century  ago  a  few  enterprising  clothing  manu- 
facturers conceived  the  notion  of  making  women's 
mantles  or  wraps;  first  a  woman's  simple  cape,  then  a 
tailor-like  coat,  then  (when  the  shirt  waist  came  in)  a 
woman's  separate  skirt.     They  succeeded  in  making 

84 


THE  NEW  YORK  CLOAK  BUSINESS  8$ 

the  beginnings  of  an  industry.  With  the  introduction 
of  finer  art  in  women's  wear,  there  came  into  being  and 
grew  with  steam-engine  rapidity  the  industry  whose 
workers  now  number  over  a  hundred  and  fifty  thousand 
and  whose  product  runs  into  millions  annually.  The 
men  who  developed  the  men's  clothing  industry  were 
in  most  instances  sons  of  irmnigrants.  The  men  who 
developed  the  women's  clothing  industry  were  also 
sons  of  immigrants.  But  the  workers  in  the  shops  were 
for  the  most  part  immigrants,  though  in  the  early 
period  there  were  some  Americans.  There  was  quick 
transition  from  worker  to  employer.  Among  the  em- 
ployers to-day,  few  can  be  foimd  who  did  not  in  their 
earlier  days  actually  work  in  a  factory.  And  many  of 
them — perhaps  the  hardest  taskmasters — have  a  history 
as  strike  leaders.  In  the  early  days,  skill  consisted  in 
making  large  quantities  cheap.  It  was  an  asset  to  have 
a  large  stock  made  up,  ready  for  quick  delivery.  To- 
day, with  styles  changing  overnight,  large  stocks  are 
liabilities;  the  buyer  waits  till  the  last  bell  rings  for  the 
season's  opening,  then  orders  a  few  of  each  design  to 
try  out  on  the  public,  expecting  re-orders  to  be  filled 
on  telephone,  but  knowing  they  must  be  made  up  for 
his  order.  To  design  all  the  varying  morning,  afternoon 
and  evening  clothes  that  beckon  from  beautiful  shop 
windows  or  adorn  handsome  ladies  in  the  Sunday  sup- 
plement requires  a  high  degree  of  artistic  skill,  a  ready 


86  LAW  AND  ORDER  IN  INDUSTRY 

and  constant  touch  with  the  centers  of  fashion,  a  knowl- 
edge of  textiles  and  their  values,  and  an  administrative 
ability  of  high  order.*  To  lead  in  the  industry  in  1910 
meant  to  have  taste,  skill,  resourcefulness,  imagination 
and  courage.  On  the  other  hand,  there  was  not  much 
of  that  fine  degree  of  factory  efficiency  nor  that  persist- 
ent search  for  small  economies  that  now  characterizes 
the  successful  factory  of  191 5. 

The  industry  is  a  style  industry.  It  is  also  a  seasonal 
industry.  This  makes  it  part  of  the  great  unem- 
ployment problem  of  the  country,  upon  which  latter 
point  we  shall  be  called  to  dwell  later.  But  because  it 
is  a  seasonal  industry,  there  is  feverish  work  for  six 
months  and  comparative  idleness  for  the  rest  of  the 
year  and  obviously  twelve  months'  overhead  charges 
for  six  months  of  operation. 

The  rents  are  enormously  high.  Factory  must  be 
near  salesroom.  The  successful  manufacturer  is  at  once 
salesman,  designer,  factory  manager,  financier  and  in- 
dustrial expert.  All  his  departments,  therefore,  must 
be  within  his  immediate  reach.  High-priced  lofts  near 
the  city's  hotel  and  railroad  centers  offer  him  his  only 
opportunity. 

He  must  have  shapely  and  attractive  mannequins  to 
march  about  his  salesroom  and  carry  his  creations  be- 

*See  extract  from  Bulletin  147,  U.  S.  Department  of  Labor,  post, 
pp.  131-2. 


THE  NEW  YORK  CLOAK  BUSINESS  87 

witchingly.  He  must  make  frequent  visits  abroad, 
stud>'ing  the  Parisian  designs  and  purchasing  high- 
priced  models. 

All  this  takes  head-work,  nervous  energy,  and  capi- 
xtal.  According  to  all  economic  philosophy,  the  cloak 
manufacturer  is  a  capitalist,  but  he  has  more  hours  of 
actual  work  to  his  daily  stint  than  a  day  laborer,  and 
if  nervous  condition  is  a  fair  test  of  physical  well-being, 
he  is  Httle  better  off  than  the  cutter  or  presser  in  his 
shop.  He  is  bound  to  die  young,  because  he  burns  him- 
self up.  The  industry  is  far  behind  others  of  older 
growth  in  these  important  respects:  / 

It  lacks  sub-division  of  responsibility.  Each  business 
is  a  one-man  institution.  It  lacks  office  and  factory 
efficiency.  And — prior  to  19 10 — it  lacked  organization. 
It  has  now  had  only  five  years  of  training  in  ordinary 
methods  of  trade  organization. 

There  has  been  no  effort  to  create  brands,  only  one 
or  two  houses,  and  those  outside  of  New  York,  following 
the  example  of  the  manufacturers  of  men's  clothing. 

The  dealings  between  the  manufacturers  and  the  re- 
tailers are  full  of  all  kinds  of  trade  abuses:  cancellation 
of  orders,  unreasonable  claims  for  damages,  unjustffied 
discounts,  etc. 

On  top  of  all  these  difficulties  comes  another:  It  is  to  be 
noted  that  the  law  of  copyright  has  never  yet  been  appHed 
to  fashion.    The  Paris  designer,  a  student  of  the  compre- 


88  LAW  AND   ORDER  IN  INDUSTRY 

hensive  foreign  libraries,  copies  from  the  ancients.  The 
American  designer  copies  from  the  Parisian.  Just  as  the 
lawyer  freely  quotes  from  the  briefs  written  by  his  pred- 
ecessors (without  making  any  acknowledgment),  so  the 
designer  of  women's  wear  freely  copies  without  any  by- 
your-leave.  This  freedom  of  copying  designs  has  gone 
to  such  lengths  within  the  past  two  decades  that  it  is  one 
of  the  menacing  evils  of  the  industry.  To  amplify  .  .  . 
I  have  given  my  life  to  a  study  of  design.  ...  I  have 
gone  abroad  and  purchased  the  Parisian  products  of  the 
best  fashion  artists  in  the  world.  .  .  .  My  bill  leaps  into 
the  thousands  of  dollars,  both  for  expenses  abroad  and 
such  models  as  I  must  purchase.  ...  I  have  employed 
expensive  artists  here.  ...  As  the  result  of  their  work 
and  mine  and  the  labors  of  my  high-priced  sample-making 
department,  I  have  created  something  which  I  believe 
will  appeal  to  the  American  woman.  .  .  .  Yet  I  know 
that  within  forty-eight  hours  after  the  first  copy  is 
exhibited  in  a  retail  department  store,  it  wiU  be  purchased 
by  one  of  my  competitors  and  copied.  I  know  more.  .  .  . 
I  know  that  at  the  corner  of  Twenty-third  Street  and 
Fifth  Avenue  they  are  selling  in  market  sketches  of  such 
of  my  designs  as  can  be  secretly  captured.  What  pro- 
tection have  I?  .  .  .  My  only  escape  is  multiplicity  and 
rapidity  of  design  at  such  frequent  intervals  that  my  com- 
petitors lag  behind  me. 
But  all  the  garments  made  in  the  women's  wear  in- 


THE  NEW  YORK  CLOAK  BUSINESS  89 

dustry  are  not  made  for  ladies  of  fashion,  you  will  say. 
The  answer  is  that  all  ladies  are  ladies  of  fashion.  Ameri- 
can women  are  reputed  to  be  the  best  dressed  women  in 
the  world.  The  very  large  bulk  that  goes  to  make  up 
the  millions  recorded  in  the  census  tables  is  worn  by 
working  girls  and  women.  But  their  tastes,  too,  are 
determined  by  the  trend  of  fashion.  The  design  of  the 
popular-priced  garment  follows  closely  in  the  wake  of 
the  finer  and  more  exclusive  model.  Before  the  strike  of 
1910  few  of  the  manufacturers  confined  themselves  wholly 
to  the  manufacture  of  exclusive  designs.  Nearly  all 
carried  a  supplemental  line  of  popular-priced  goods. 
But  in  addition  to  the  high-grade  and  popular-priced 
garments,  there  were  quantities  and  quantities  of  gar- 
ments of  very  cheap  quality  made  for  consumption 
throughout  the  country.  The  popular  song  in  New  York 
City  to-day  will  be  heard  in  some  Western  town  three 
years  from  now.  The  sheet  of  music  that  now  brings  its 
forty  or  fifty  cents  in  New  York  will  then  be  sold  in  the 
Five  and  Ten  Cent  Store.  The  same  spread  of  the  new 
design  takes  place  with  the  popular  woman's  garment. 

We  are  thrown,  then,  into  an  industry,  broadly  speak- 
ing, where  two  elements  control — the  element  of  design 
and  the  element  of  cost  of  production;  one  group  of 
manufacturers  bent  upon  rapidly  executing  movements 
in  the  direction  of  high-priced  and  excellently  made 
garments;  another  in  the  direction  of  producing  large 


go  LAW  AND   ORDER  IN  INDUSTRY 

quantities  at  the  lowest  possible  cost,  but  none  making 
up  stock  in  quantities  in  advance  of  sales.  Neither  of 
these  trade  movements  is  independent  of  the  other. 
Each  reacts  upon  the  other.  In  a  general  way  it  can  be 
assumed  that  the  cost  of  material  is  approximately 
the  same  to  the  manufacturer  of  high-grade  goods  as 
it  is  to  the  manufacturer  of  the  popular-priced  goods, 
given  the  same  quaHty  and  texture  of  material.  But 
there  is  a  very  marked  divergence  in  overhead  charges 
and  cost  of  labor.  The  old-fashioned  sweatshop  operator 
could  successfully  compete  against  the  uptown  manu- 
facturer, first,  because  his  overhead  charges  were  low — 
far  below  the  uptown  man's,  and  secondly,  because  his 
cost  of  labor  was  very  much  less.  His  hours  of  labor 
were  longer  and  the  price  of  labor  was  lower.  If  he  had  a 
small  shop  and  fewer  people  to  deal  with,  he  had  very 
much  less  rent  to  pay,  he  made  no  trips  abroad,  he 
bought  no  designs,  employed  no  mannequins,  and  was 
his  own  designer,  salesman,  and  often  his  own  cutter. 
Indeed,  the  biography  of  many  of  the  big  manufacturers 
of  to-day  begins  as  employers  at  the  point  where  they 
stopped  cutting  or  pressing  garments  as  employees  of 
others,  became  "contractors"  for  some  larger  employer, 
then  graduated  into  the  employers'  group,  accmnulated 
capital  out  of  small  profits,  Uved  on  the  most  economical 
scale,  and  captured  the  styles  of  others  as  freely  as  their 
present  competitors  now  capture  theirs. 


THE  NEW  YORK  CLOAK  BUSINESS  9I 

The  day  of  the  specialty  store,  that  is,  the  store  where 
nothing  but  women's  garments  is  sold,  in  1910  had  not 
yet  arrived.  The  retail  disposition  of  women's  garments 
was  wholly  in  the  hands  of  the  department  stores.  The 
manufacturer  was  to  a  great  extent  at  the  mercy  of  the 
department  store  management,  unless  he  could  produce 
something  of  such  rare  excellence  and  beauty  that  the 
retailer  was  obliged  to  come  to  him.  That  the  depart- 
ment stores  had  much  to  do  with  the  copying  of  styles 
and  the  establishment  of  new  manufacturers  is  not  dis- 
puted by  those  who  know  the  trade.  The  finger  is  fre- 
quently pointed  at  specific  department  store  owners  who 
in  the  past  made  a  specialty  of  buying  fine  garments 
from  leading  manufacturers  and  then  establishing  others 
in  business,  furnishing  them  with  successful  "numbers" 
to  make  up  for  sale  at  "bargain-counter  prices." 

Into  this  industry  came  a  union.  Another  nuisance 
to  add  to  the  plagues  of  the  manufacturer !  Is  there  any 
wonder  that  at  first  it  was  ignored,  then  fought,  and  only 
with  reluctance  accepted  as  a  factor?  Then,  if,  through 
the  union,  some  order  could  be  brought  out  of  this  chaos, 
hailed  with  hope !  If  all  paid  the  same  price  for  the  same 
labor,  as  all  paid  for  the  same  merchandise,  efficiency 
as  manufacturers  would  count  for  something  against 
unscrupulous  competitors.  If  we  could  be  sure  that 
everybody  would  observe  fifty  hours  a  week,  pay  double 
pay  for  overtime,  and  close  up  on  holidays  when  we 


92  LAW  AND   ORDER  IN  INDUSTRY 

did,  we  could  readily  raise  the  standards  of  working 
conditions.  In  1910,  at  the  time  of  the  Brandeis  con- 
ferences, this  was  the  dominant  note  on  the  part  of 
the  manufacturers.  As  stated  in  Chapter  III,  the 
consideration  for  the  great  advances  given  to  the  work- 
ers was  the  promise  of  a  rational  and  peaceable  method 
for  securing  adjustment  of  future  controversies  and 
the  equal  enforcement  of  standards  and  wage  condi- 
tions throughout  the  entire  industry.*  The  standards 
were  established.  Under  the  preferential  union  shop 
provisions,  the  union  secured  almost  complete  control 
of  the  workers.  Theoretically,  the  law  of  the  Protocol 
was  the  law  of  the  industry.  In  the  Employers'  Associa- 
tion, if  a  member  violated  the  Protocol,  complaint  was 
made  by  the  union  and  investigation  followed.  If  he 
underpaid  the  scale  his  own  books  would  disclose  the 
evidence;  there  was  no  constitutional  protection  against 
furnishing  self-incriminating  evidence.  He  was  obliged 
to  comply  with  the  rules.  His  first  offense  would  be 
followed  by  a  warning;  his  second  by  a  fine,  and  his 
third  by  expulsion.  In  the  non-Association  shops  the 
union  was  (theoretically)  in  complete  control.  These 
were  the  shops  of  the  closed  shop  agreements,  where  the 
walking  delegate  was  free  to  enter  and  where  the  right 
to  strike  was  unabridged. 
In  1 91 2  something  new  happened.  Manufacturers 
*  See  page  39. 


THE  NEW  YORK   CLOAK   BUSINESS  93 

began  buying  goods  from  manufacturers.  Prior  to  191 2  a 
"jobber,"  so  called,  was  a  man  who  bought  job  lots  of 
undisposed  of  garments,  either  directly  from  manufac- 
turers or  at  auction  sale,  and  sold  them  to  retailers  for 
bargain-counter  sales.  In  191 2,  1913,  1914,  and  191 5 
jobbers  became  more  numerous  and  their  annual  business 
mounted  into  the  millions.  Manufacturers  who  had  been 
in  the  industry  for  years,  who  had  estabHshed  splendid 
organizations,  were  offered  garments,  complete  and 
ready  for  delivery,  at  prices  so  far  below  what  they  could 
produce  them  for  in  their  own  shops  that  they  opened 
their  eyes  in  amazement.  This  was  particularly  true  of 
the  popular-priced  garment.  Steadily  but  certainly 
the  great  volume  of  work,  the  "bundles"  as  they  are 
called  in  the  trade,  began  to  go  from  the  "inside"  to 
the  "outside"  shop.  Why  manufacture  when  you  can 
job?  By  1913  the  matter  had  become  one  of  grave  con- 
cern both  to  the  leaders  of  the  union  and  to  the  lead- 
ers of  the  manufacturers'  association.  It  was  a  subject 
of  repeated  conference  and  discussion.  The  remedy 
proposed  by  the  union  was  simple.  It  was  to  throw  upon 
the  members  of  the  employers'  association  the  burden 
of  maintaining  standards  in  all  the  shops  whose  merchan- 
dise they  bought.  From  the  manufacturers'  view-point 
this  meant  an  inevitable  diminution  in  the  membership 
of  the  employers'  association  and  an  increase  in  the 
number  of  jobbers.    There  was  no  law  by  which  a  man- 


94  LAW  AND  ORDER  IN  INDUSTRY 

ufacturer  could  be  compelled  to  remain  a  manufacturer 
and  a  member  of  the  association.  What  was  the  ex- 
planation for  this  trade  movement?  It  has  been  offered 
by  one  of  the  manufacturers: 

The  cloak  industry  is  not  a  "capitalistic"  industry  in 
the  usually  accepted  meaning  of  this  term;  only  a  few 
hundred  dollars  are  required  to  organize  a  shop.  A 
worker  or  foreman,  having  saved  the  necessary  amount, 
engages  in  business,  and  makes  up  his  stafif  of  workers 
from  relatives  or  friends,  unmigrants  who  work  under  any 
and  all  conditions,  only  too  ready  to  accept  employment 
below  union  standards.  This  so-called  "social"  shop 
the  union  is  unable  to  control.  The  union  allegiance  in 
such  a  shop  is  naturally  weak,  and  the  union  officials 
naturally  prefer  the  easier  work  of  enforcing  conditions 
in  the  larger  shop  units.  In  the  " social"  shop  everything 
is  easy.  The  boss  gets  along  with  his  people  and  there 
are  no  "grievances."  The  union  hears  of  no  complaints 
and  on  paper  everything  is  lovely.  The  small  shops, 
therefore,  increase  in  number;  new  employers  spring 
up  over  night,  and  the  cost  of  manufacturing  tells  the 
tale  to  the  association  employer.  The  difference  in  cost  of 
labor  cannot  be  accounted  for  by  the  difference  in  piece 
prices.  It  is  made  up  by  the  opportunity  in  the  "social" 
shop  to  work  people  longer  hours,  Saturday  afternoons, 
hoHdays,  to  cut  by  piece  (instead  of  upon  a  week-work 
basis),  to  press  by  piece,  and  to  do  many  other  things 
forbidden  by  the  Protocol,  impossible  in  the  association 
shop,  but  quite  practicable  in  the  "social"  shop.* 

If  the  manufacturers  blamed  the  union  for  these  con- 

*  Letter  of  Max  Meyer,  New  York  Times,  July  8, 1915. 


THE  NEW  YORK   CLOAK  BUSINESS  95 

ditions,  the  union,  with  equal  facility,  blamed  the  man- 
ufacturers. The  reply  to  the  manufacturer  by  the 
union  was  that  the  conditions  existed  because  skilled 
workers  were  discharged  at  the  end  of  every  season  and 
were  thus  induced  to  "borrow  a  little  money  from  their 
friends  and  relatives  and  start  a  small  'social'  shop,  or 
some  semblance  to  it"  and  that  the  larger  manufacturers 
"aid  these  small  shops  financially,  purchase  their  product 
or  place  with  them  direct  orders  for  goods"  and  thus 
"are  themselves  responsible  for  the  cut- throat  compe- 
tition abounding  in  the  industry."  *  It  will  be  observed 
that  though  each  throws  the  responsibility  upon  the  other, 
both  agree  upon  the  fact  of  the  existence  of  the  evil  and 
the  prime  and  pressing  necessity  for  its  elimination.  (Ob- 
viously, if  both  are  so  far  agreed,  why  not  a  joint 
remedy?) 

It  has  frequently  been  assumed  that  the  real  cause  of 
the  difficulty  is  the  absence  of  standards  for  piece  rates.f 
It  is  true  that  as  to  seventy-five  per  cent  of  the  prices  for 
labor  there  is  no  standard,  and  each  garment  is  separately 
estimated  upon  before  it  can  be  put  into  operation.  The 
difficulties  inherent  in  this  problem  for  the  shop  can  be 
imagined  when  it  is  recalled  that  the  success  of  the 
high-grade  shop  is  dependent  upon  the  variety  of  styles  it 

*  Sidelights  on  the  Recent  Controversy,  The  Ladies^  Garment  Worker, 
September,  19 15,  p.  8. 

t  See  letter  of  George  W.  Alger,  The  New  Republic,  June  19,  1915, 
p.  179. 


96  LAW  AND  ORDER  IN  INDUSTRY 

creates.  The  price  of  labor  is  determined  in  each  case 
by  a  process  of  haggling  between  the  representatives  of 
the  shop  on  the  so-called  "price  committee"  and  the 
employer.  So  far  as  this  fixing  of  piece  rates  is  con- 
cerned, it  is  literally  true  that  the  employers  deal  with 
two  thousand  unions  instead  of  with  one.  In  the  lan- 
guage of  the  President  of  the  union: 

Prices  for  one  and  the  same  garment  varied  in  every 
shop.  The  stronger  party  at  the  bargaining  invariably 
prevailed.  Our  Union  controls  some  two  thousand  shops 
in  New  York;  yet  it  was  not  the  Union  that  controlled 
the  prices  but  two  thousand  separate  "unions,"  each 
shop  acting  independently  of  the  other. 

This  method  had  a  doubly-unfortunate  effect  on  the 
condition  of  the  trade.* 

Though  seventy-five  per  cent  of  the  prices  of  labor  are 
fixed  by  this  process  of  haggling,  it  does  not  follow  that 
the  piece  price  operation  is  seventy-five  per  cent  of  the 
labor  cost  of  the  product.  The  difference  between  the 
piece  rate  in  one  shop  and  the  piece  rate  in  another  in 
the  cloak  industry  could  not  possibly  make  for  the  wide 
divergence  in  the  wholesale  marketing  price  of  the  gar- 
ment. It  is  the  contention  of  manufacturers  who  have 
studied  the  matter  that  the  marked  difference  is  due  to 
the  freedom  the  non-Association  employer  enjoys  from 
the  exacting  conditions  of  the  Protocol.    On  the  other 

*  B.  Schlesinger:  Our  Recent  Struggle  and  Its  Results,  The  Ladies' 
Garment  Worker,  September,  19 15,  p.  16. 


THE  NEW  YORK  CLOAK  BUSINESS  97 

hand,  there  is  a  very  prevalent  fear  on  the  part  of  a  con- 
siderable number  of  manufacturers  that,  just  as  the 
specialty  shop  has  in  many  respects  the  advantage  over 
the  high-priced  department  store,  so  the  little  manu- 
facturer has  a  natural  advantage.  As  this  chapter  is 
being  written,  a  Philadelphia  manufacturer  is  reported 
to  express  the  fear  that  "in  five  years  the  large  cloak 
and  suit  shops  will  have  disappeared"  and  bases  this 
prediction  upon  his  belief  that  "the  manufacturer,  by 
giving  his  work  out,  can  have  it  done  much  cheaper  than 
he  can  do  it  himself  with  high-priced  cutters  and  other 
more  expensive  employees  and  heavier  overhead  ex- 
penses, rent,"  etc.  "The  time  is  coming,"  he  says,  "when 
they  will  cease  manufacturing  in  their  own  plants,  give 
the  work  out,  and  become  jobbers."  * 

In  a  study  of  the  problem  of  standardizing  piece 
rates  in  the  dress  and  waist  industry,!  now  published 
as  Bulletin  146  of  the  United  States  Department  of 
Labor,  Bureau  of  Labor  Statistics,  very  much  the  same 
problem  is  disclosed.  The  director  of  the  investigation 
states: 

The  chief  difficulty  with  a  piece-rate  schedule  for  the 
making  of  garments  is  in  finding  a  satisfactory  basis  that 
will  meet  the  varying  conditions  under  which  the  prod- 

*  See  Women's  Wear,  September  i8,  1915,  under  heading  "Coats  and 
Suits." 
t  Made  by  Dr.  N.  I.  Stone. 


98  LAW  AND  ORDER  IN  INDUSTRY 

ucts  of  the  garment  industry  are  made.  Styles  of  gar- 
ments change  very  radically,  and  the  amount  of  work 
necessary  to  produce  two  garments  selling  at  the  same 
price  may  differ  one  hundred  per  cent,  and  sometimes  a 
great  deal  more.  In  one  case  there  will  be  comparatively 
little  labor  and  finer  material,  and  more  or  better  trim- 
mings. In  the  other  case  there  will  be  relatively  more 
labor  with  a  consequent  saving  in  the  cost  of  material 
and  trimmings.* 

Again: 

A  scale  of  rates  paid  in  shops  in  which  efficiency  is  the 
keynote,  in  which  the  operator  is  able  to  work  steadily 
through  the  day  without  waste  of  time,  with  up-to-date 
machinery  and  apphances,  and  amid  sanitary  surround- 
ings, may  be  fully  adequate  to  enable  the  workers  to  earn 
good  wages  in  that  shop.  The  same  schedule  of  piece 
rates  may  prove  totally  inadequate  for  operators  of  equal 
skill  working  in  a  shop  where  lack  of  system  on  the  part 
of  the  management  results  in  frequent  interruptions  and 
stoppages  of  work.  .  .  .f 

It  may  be  that  the  smaU  shop  is  economically  the  more 
efficient  unit  for  the  manufacture  of  the  popular-priced 
garment  and  that  instead  of  its  being  regarded  as  an 
outlaw  to  be  dealt  with  summarily,  it  should  be  legiti- 
matized and  regulated. 

I  am  not  here  attempting  a  complete  analysis  of  this 

*  Bulletin  146,  Bureau  of  Labor  Statistics,  Department  of  Labor, 

p.  193- 

t  Bulletin  146,  p.  293. 


THE  NEW  YORK   CLOAK  BUSINESS  99 

technical  problem  of  the  industry.  It  is  a  problem  that 
sooner  or  later  must  be  thoroughly  studied  and  solved. 
I  have  presented  it,  however,  with  sufficient  concreteness 
to  give  to  the  student  or  the  casual  reader  some  picture 
of  the  business  difficulties  inherent  in  the  running  of  this 
industry.  Now,  add  to  the  business  difficulties  the  high- 
strung  temperament  of  the  workers  on  both  sides — I 
mean,  of  course,  to  include  the  "boss"  as  well  as  the 
operators — and  it  becomes  apparent  that  to  bring  law 
and  order  into  this  industry  was  to  make  the  attempt  in 
perhaps  the  most  difficult  and  most  handicapped  of  all 
the  young  industries.  Compare  this  industry  with 
industries  where  large  plants  are  required,  large  invest- 
ments of  capital  are  necessary  before  there  can  be  a 
beginning.  Take  the  steel,  the  coal,  any  of  the  mining 
industries,  for  example.  The  problem  is  obviously  much 
simpler. 

The  Protocol  undertook  to  better  industrial  conditions 
by  rational  and  peaceable  methods.  Upon  the  sanitary 
side  it  succeeded.  Upon  the  business  side,  while  it  did 
not  wholly  fail,  it  did  not  meet  the  expectations  of  those 
who  framed  it.  The  hope  of  the  decent  manufacturer 
in  1910  that  the  Protocol  would  make  the  high-grade 
manufacturer's  position  more  certain  has  not  yet  ma- 
tured. Under  the  rigorous  enforcement  of  standards  by 
the  Association  of  which  he  is  a  member,  he  is  obHged 
to  observe  standards  while  his  competitor  outside  of  the 


lOO  LAW  AND  ORDER  IN  INDUSTRY 

Association  runs  the  risk  only  of  the  occasional  strike. 
What  then?    Shall  we  go  back  to  the  anarchy  of  1909? 

Beginning  with  1 913,  as  we  shall  see,  the  strain  upon 
the  officers  on  both  sides  became  so  great  that  it  broke 
them  down. 


CHAPTER  IX 

THE  CRISIS  OF   1913 

The  failure  to  bring  about  equality  of  standards  in 
the  industry  developed  an  anti-Protocol  party  within  the 
ranks  of  the  manufacturers.  Just  as  the  business  man 
blames  the  national  administration  in  power  for  bad 
business  conditions,  so  the  business  men  in  the  industry 
cast  upon  the  Protocol  entire  responsibility  for  aU  their 
business  troubles. 

In  the  miion  ranks,  a  stronger  anti-Protocol  party 
flourished.  Remember,  the  Protocol  had  not  promised 
the  millennium,  but  it  had  been  very  much  over -praised. 
Too  much  had  been  promised  in  advance  and  the  trum- 
pets of  victory  had  sounded  too  long  after  the  march  was 
over.  The  feeling  that  the  employers  had  been  whipped 
into  submission  was  freely  encouraged.  The  Protocol 
was  in  truth  a  successful  outcome  for  the  imion;  but  it 
was  far  from  a  defeat  for  the  employers.  The  policy 
implicit  in  the  Protocol,  the  spirit  back  of  its  institutions, 
the  peace  methods — all  these  were  without  meaning, 
indeed,  had  not  been  translated  over  to  the  great  masses 
of  the  working  people.  The  process  of  educating  them 
to  its  true  value  had  not  yet  been  devised,  and  the  hand- 


I02  LAW  AND  ORDER  IN  INDUSTRY 

ful  of  men  in  the  union  who  understood  its  philosophy 
felt  genuinely  that  time  and  experience  were  the  only 
true  processes  of  education.  There  were,  in  addition, 
outside  influences  at  work. 

You  cannot  build  up  a  working  creed  for  ten  years  and 
then  suddenly  throw  it  to  the  winds.  The  employers 
were  the  enemies  of  the  workers.  Each  belonged  to  a 
separate  class.  There  could  be  no  peace  between  them. 
There  must  be  eternal  warfare.  The  klassenkampf 
was  here,  right  here  in  the  cloak  industry.  The  Protocol? 
Yes,  it  was  a  temporary  truce  to  give  us  more  power 
with  which  ultimately  to  smite  the  employer  and  so 
triumph  over  the  whole  capitalistic  tribe.  Our  employers 
are  our  masters,  we  are  poor  slaves.  Does  the  Protocol 
say  you  cannot  strike?  Then  a  plague  upon  it;  you  are 
"slaves  of  the  Protocol." 

Two  groups  developed  within  the  union  itself;  one,  the 
men  who  had  spent  their  lives  in  sacrifice  for  the  working 
people  and  who  regarded  the  Protocol  as  a  great  advance, 
who  knew  from  actual  experience  the  inutility  of  the 
strike  and  the  ineffectiveness  of  violence,  who,  to  meet 
the  pressing  and  obvious  needs  of  to-day,  studied  ex- 
isting business  factors  and  tried  to  meet  them  squarely 
and  looked  to  a  better  order  of  society,  yes,  SociaHsm 
itself,  as  an  ultimate  but  far  distant  goal  to  be  reached 
only  after  years  of  slow  preparation  in  which  the  Pro- 
tocol itself  might  play  a  part.     These  were  the  Con- 


THE   CRISIS  OF   1913  103 

servatives.  The  other  group  were — shall  we  call  them? — 
the  Impatients.  Quite  opposed  to  all  the  methods,  the 
institutions,  the  philosophy  of  the  parliamentarians  or 
the  jurists,  they  saw  in  all  their  schemes  and  plans  noth- 
ing but  spiders'  webs  in  which  to  ensnare  them,  and  who, 
genuinely  enough,  believed  that  the  joinder  of  the  leaders 
of  the  imion  with  the  leaders  of  the  employers'  association 
in  a  common  task  was,  so  far  as  the  union  leaders  were 
concerned,  a  traitorous  surrender  of  their  class  and  a 
betrayal  of  vital  principles.  How  can  you  dine  with 
your  enemy?  How  make  agreements  with  him  that  you 
must  keep?  You  are  but  postponing  the  Great  Day  of 
our  Trimnph.  You  sold  our  precious  birthright  when  you 
bade  us  keep  forever  to  a  system  of  arbitration!  By 
such  a  process  you  have  weakened  the  cause  of  labor. 

So  ran  the  song.  The  journal  of  the  International 
body  was  The  Ladies^  Garment  Worker.  The  journal  of 
the  Joint  Board  was  the  New  Post.  The  Joint  Board 
represented  the  Cloakmakers'  Union  of  New  York  City. 
The  International  was  the  parent  body  for  all  the  cloak- 
makers'  locals  the  country  over.  Between  the  editor  of 
the  New  Post  (supported  by  the  Joint  Board)  and  the 
editor  of  the  Garment  Worker  developed  a  sharp  journal- 
istic controversy,  with  the  advantage  to  the  New  Post 
that  the  latter,  a  cheap  weekly,  reached  practically 
every  member  of  the  union,  while  the  former,  pubHshed 
monthly,  reached  only  a  comparative  few.     Here  are 


I04  LAW  AND  ORDER  IN  INDUSTRY 

illustrations  of  the  manner  of  debate  and  the  points  in 
controversy:  In  January,  19 13,  the  Garment  Worker 
contained  the  following  editorial  (p.  13) : 

A  Word  with  Our  "  Irreconcilables" 

We  have  had  occasion  more  than  once  to  refer  to  the 
discontented  and  irreconcilable  element  in  our  organiza- 
tion. Every  organization  has  this  element.  By  their 
discontent  with  prevailing  conditions  they  often  do  a 
useful  service.  By  clamoring  for  more  than  we  have  they 
only  illustrate  a  law  of  human  progress.  But  at  times 
this  element  becomes  dangerous,  particularly  when  they 
fall  into  the  hands  of  demagogues,  who  in  order  to  main- 
tain their  position  in  the  organization,  pander  to  their 
prejudices,  stir  up  discontent,  and  magnify  it,  and  try  to 
force  the  organization  to  demand  from  the  employer  the 
impossible.  .  .  . 

In  the  Garment  Worker  for  November,  191 2,  under  the 
heading  of  "Everything  or  Nothing,"  after  referring  to 
the  difficulties  which  the  union  had  experienced  in  the 
past  in  organizing  the  workers  of  the  trade,  in  that  "our 
people  insisted  upon  either  getting  everything  they 
desired  in  a  union  shop,  or  no  union  shop  at  all,"  and 
observing  that  "it  is  impossible  to  achieve  all  that  we 
want,  the  best  we  can  get  is  some  kind  of  a  suitable 
compromise  for  which  our  people  would  not  stand," 
the  editor  continues:  "The  result  was  that  in  the  past 
we  got  nothing.'^   He  finds  that  the  success  of  the  general 


THE   CRISIS  OF   1913  105 

strike  of  1 9 10  came  from  the  fact  that  "our  people  were 
wise  enough  to  accept  what  we  considered  to  be  a  suit- 
able compromise"  and  points  out  with  pride  that  "after 
two  years  the  Organization  is  much  stronger  and  on  a 
more  solid  footing  than  it  was  two  years  ago."  He 
then  prophesies  that  "success  in  the  future  will  largely 
depend  upon  our  abiHty  to  accept  a  part  of  what  we 
demand  and  keep  on  clamoring  for  more."  The  "old 
story  of  either  'everything  or  nothing'"  being  revived, 
he  complains :  ' '  We  ha^'e  been  told  lately  that  unless  the 
union  will  get  all  that  is  coming  to  us,  .  .  .  the  union 
will  remain  a  'comedy  and  a  fraud.'  ...  we  have 
pointed  out  on  several  occasions  the  danger  of  urging  .  .  . 
what  is  physically  impossible  to  get.  //  has  been  our  weak- 
ness in  the  past  to  promise  our  people  more  than  it  was 
possible  to  get  for  them."  He  refers  to  the  then  pending 
agitation  against  the  Protocol  as  "a  pernicious  and  dan- 
gerous form  of  agitation  and  if  successful  will  lead  to  the 
destruction  of  the  Union.  Especially  in  a  trade  like  ours, 
with  such  a  huge  immigration,  with  so  many  garment 
workers  outside  of  it,  working  under  much  inferior  con- 
ditions, .  .  .  leakages  of  either  one  form  or  another ' '  are 
bound  to  occur  " .  .  .  to  carry  on  an  agitation  amongst 
our  people,  that  unless  we  can  stop  all  leakages  the 
union  is  worthless,  is  practically  the  worst  thing  which 
can  be  done,  especially  when  this  agitation  is  carried  on 
by  responsible  officers  of  the  union." 


Io6  LAW  AND   ORDER   IN  INDUSTRY 

In  reciting  the  history  of  this  agitation  in  his  report 
to  the  International  Ladies'  Garment  Workers'  Union 
in  the  Cleveland  Convention,  June,  19 14,  the  President 
said  that  "a  crusade  was  started  against  the  Proto- 
col ..  .  and  against  those  who  ventured  to  hold  that  the 
Protocol  had  brought  to  the  cloakmakers  improvements 
and  advantages.  All  sorts  of  grievances  against  the 
Association  were  unearthed.  Every  petty  case  that  a 
business  agent  with  common  sense  could  easily  settle  was 
made  into  a  general  issue." 

As  we  shall  see  later,  this  agitation  brought  to  a  focus 
in  191 5  the  so-called  "discharge  issue."  The  foresight  of 
the  union  President  in  issuing  the  warning  is  apparent 
from  the  following  quotation: 

A  hue  and  cry  was  raised  that  all  active  union  men 
were  being  discharged,  notwithstanding  the  evidence 
afforded  by  the  records  that  in  three  years  less  than 
five  hundred  employees  had  been  discharged,  and  of 
these  a  large  number  were  reinstated.  Such  exaggerated 
reports  were  persistently  spread  until  belief  in  their 
veracity  became  almost  general.* 

The  description  of  the  President  of  the  attacks  upon  the 
manufacturers  in  the  official  organ  of  the  Joint  Board  is 
significant. 

.  .  .  the  official  organ  of  the  Joint  Board,  on  the  one 

*  Report  and  Proceedings — Twelfth  Convention  of  the  International 
Ladies'  Garment  Workers'  Union,  p.  16. 


THE  CRISIS  OF   1913  107 

hand,  attacked  the  manufacturers,  and,  on  the  other, 
published  Industrialist  and  Syndicalist  articles,  em- 
phasizing the  workers'  abstract  rights  and  declaring 
them  to  be  justified,  even  when  they  are  glaringly  un- 
justified.* 

He  refers  to  the  fact  that  this  agitation  had  "inflamed  the 
minds  of  the  cloakmakers,  who  for  the  last  two  years 
have  had  bad  seasons  and  very  Uttle  work"  and  that 
several  times  the  officers  of  the  International  had  brought 
to  the  attention  of  the  Joint  Board  "that  it  was  not  a 
question  of  justice  and  rights  in  the  abstract,  but  rather 
one  of  possibility  of  achievement."  He  says:  "being 
irritable  and  disappointed  by  reason  of  troubles  and 
difficulties  for  which  the  Union  was  not  responsible, 
the  workers'  minds  were  not  open  to  logic  and  reason, 
especially  when  the  logic  and  reason  came  from  the  inter- 
national officers,  who  are  widely  known  for  their  con- 
servatism and  moderation."  f 

Here,  then,  we  have  conflict  between  the  experienced 
leaders  who  went  through  the  strike  of  19 10  and  the  newer 
element  in  the  union,  who  were  at  once  seeking  to  over- 
throw the  Conservatives  and  the  Protocol.  Contests 
of  this  sort  are  usual  in  pohtical  affairs  and  are  accepted 
as  part  of  the  process  of  education  by  which  men  arrive 
at  sound  policies.    But  while  this  conffict  of  opinion  was 

*  Report  and  Proceedings — Twelfth  Convention  of  the  International 
Ladies'  Garment  Workers'  Union,  p.  16. 


Io8  LAW  AND  ORDER   IN   INDUSTRY 

raging  within  the  union,  the  industry  was  suffering. 
The  Chief  Clerk  for  the  employers'  association  once  made 
up  a  chart  which  showed  the  direct  effect  upon  the  tem- 
perature of  the  industry  of  this  difficulty  in  the  blood. 
The  more  heated  the  debate,  the  more  frequent  the 
shop  strikes.  In  other  words,  the  more  articles  were 
written  against  the  Protocol,  read  by  the  workers,  the 
greater  the  difficulty  of  preserving  order  in  the  in- 
dustry. 

By  January,  19 13,  the  fever  reached  its  height,  A 
certain  shop  broke  the  law  and  went  on  strike.  Upon 
appeal  to  the  Chief  Clerk  for  the  union,  the  manufactur- 
ers received  no  relief  and  when  the  Chief  Clerk  was  in- 
formed that  an  appeal  would  be  made  to  the  International, 
he  disputed  the  power  of  the  national  body  to  intervene. 
In  effect  he  said  that  the  "Joint  Board  was  the  substance 
of  the  union  and  the  International  the  shadow."  He 
was  not  so  far  wrong  as  a  statement  of  the  fact,  but  as  a 
statement  of  the  legal  responsibility  of  the  International 
he  was  in  error.  By  February,  1913 ,  the  Board  of  Arbitra- 
tion had  decided  that  the  International  was  responsible 
for  the  preservation  of  order  in  the  industry  and  for  the 
observance  of  its  contracts  by  the  Joint  Board. 

In  September,  1913,  another  strike  occurred  in  an 
Association  shop.  On  appeal  to  the  Chief  Clerk  no  relief 
was  secured.  Soon  the  strikers  were  found  picketing  the 
shop,  though  the  union  had  not  authorized  any  strike. 


THE  CRISIS  OF   1913  109 

The  Chief  Clerk  for  the  union  defended  both  the  strike 
and  the  picketing.  Upon  appeal  to  the  International, 
the  International  found  itself  unable  to  abate  the  strike. 
Again  the  Association  appealed  to  the  Board  of  Arbitra- 
tion. That  Board  sat  for  two  days,  October  3d  and 
4th,  1 9 13,  reviewed  the  entire  history  of  the  transac- 
tions during  191 2  and  19 13,  rebuked  the  Chief  Clerk  of 
the  Joint  Board  for  his  conduct,  rebuked  the  Interna- 
tional officers  for  failing  to  intervene,  made  strong 
admonition  to  both  parties  that  law  and  order  must  be 
maintained  under  the  Protocol,  and  admonished  the 
union  with  reference  to  the  articles  that  appeared  at- 
tacking the  Protocol,  that  this  kind  of  "miseducation" 
must  cease.  After  this  utterance  from  the  Board  of 
Arbitration  the  Association  felt  called  upon,  in  a  com- 
munication to  the  union,  to  review  the  decision  of  the 
Board  made  the  previous  February  and  to  bring  the 
seriousness  of  the  situation  to  the  attention  of  the  Inter- 
national.   In  this  communication  the  Association  said 

The  situation  is  a  most  critical  one.  The  conditions 
disclosed  by  the  record  presented  to  the  Board  of  Arbi- 
tration in  February  last  have  become  more  aggravated 
during  the  past  eight  months.  There  has  been  a  com- 
plete breaking  down  of  that  relationship  of  "mutual 
respect  and  confidence,"  which  the  Board  of  Arbitration 
says  is  essential  to  the  life  of  the  Protocol,  and  there  has 
been  not  only  a  complete  failure  to  educate  the  members 
of  your  Union  to  an  understanding  of  the  difficulties  of 


no  LAW  AND   ORDER  IN   INDUSTRY 

the  problem  presented,  but,  through  the  columns  of  the 
Neue  Post  and  through  the  work  of  some  of  the  represent- 
atives of  the  Joint  Board,  there  has  been  (as  the  Board 
of  Arbitration  now  finds)  a  campaign  of  "misedu cation." 

We  must  now — after  three  years  of  experience  with 
the  Protocol — call  upon  you  for  direct  and  specific  an- 
swers to  the  following  questions: 

First.  Does  the  International  Ladies'  Garment  Work- 
ers' Union  accept  the  interpretation  of  its  relationship 
to  the  Protocol  as  laid  down  by  the  Board  of  Arbitration? 

Second.  Does  it  accept  the  obligations  imposed  upon 
the  parties  to  the  Protocol  as  laid  down  by  the  Board  of 
Arbitration  specifically  with  reference  to 

(a)  The  conduct  of  the  Grievance  Board; 

(b)  The  conduct  of  the  representatives  of  the  Union 
who  deal  directly  with  the  Association; 

(c)  The  use  of  the  columns  of  the  Neue  Post  and  other 
organs  reaching  the  members  of  the  Union? 

Third.  Does  the  International  accept  the  decision 
made  by  the  Board  of  Arbitration,  that  while  the  power 
resides  in  either  party  to  the  Protocol  to  abrogate  it,  that 
it  does  not  lie  in  either  side  to  suspend  its  operations,  and 
that  ''picketing"  and  calling  men  "scabs"  and  "strike 
breakers,"  and  suffering  local  shop  strikes,  must  cease, 
and  that  the  entire  power  of  the  Joint  Board  and  the 
International  must  be  used  to  discipline  the  members 
and  prevent  the  recurrence  of  such  situations? 

Fourth.  Has  the  International  the  power  actually  to 
do  the  things  it  has  undertaken  to  do? 

Fifth.  Is  it  willing,  if  it  has  the  power? 

Upon  your  answer  to  these  questions  depends,  in  our 
judgment,  the  continuance  of  the  Protocol  as  a  working 
instrument  between  us. 

As  this  letter  is  sent  by  direction  of  the  Executive 


THE   CRISIS  OF   1913  III 

Committee  of  the  Association,  we  must  ask  you  for  an 
answer  that  is  approved  by  the  General  Executive  Board 
of  your  organization. 

At  this  time  the  Association  had  no  idea  of  breaking  off 
relations  with  the  union.  It  sought  merely  to  secure  the 
carrying  on  of  the  institutions  created  by  the  Protocol. 
The  communication,  however,  was  seized  upon  by  the 
then  Chief  Clerk  of  the  union  and  his  adherents  as  the 
basis  for  further  agitation  against  the  Protocol.  The  en- 
tire anti-Protocol  sentiment  in  the  union  rallied  about 
the  Chief  Clerk  as  its  leader,  untU,  on  the  i6th  of 
December,  19 13,  the  Association  was  obhged  to  write  the 
tmion: 

We  are  informed  that  Dr.  Hourwich  is  to  continue  to 
represent  the  Joint  Board  in  their  dealings  with  our 
Association  under  the  Protocol.  We  regret  to  be  obliged 
to  ask  you  to  designate  someone  else  with  whom  we  may 
have  official  relations.  Dr.  Hourwich  has  publicly 
charged  our  Association  with  having  offered  him  an 
inducement  to  work  for  the  Association;  has  publicly 
charged  us  with  having  connived  to  warp  the  statistical 
inquiry  of  the  Board  of  Arbitration;  has  attacked  the 
good  faith  of  our  Association,  the  Board  of  Arbitration, 
the  Board  of  Grievances,  your  International  Officers  and 
your  Joint  Board,  and  stated  in  the  presence  of  the 
Board  of  Arbitration  that,  in  view  of  its  recent  decisions, 
he  could  not  work  in  harmony  either  with  the  Board  or 
with  us.  We  recognize  fully  the  right  of  each  party  to  the 
Protocol  freely  to  select  its  own  agents,  but  since  it  is  of 
the  essence  of  the  Protocol  that  there  shall  be  mutual 


112  LAW  AND  ORDER  IN  INDUSTRY 

respect  in  the  daily  dealings  of  the  parties,  it  is  obvious 
that  neither  party  can  have  dealings  with  a  representa- 
tive of  the  other,  whose  deliberate  purpose  it  is  to  create 
distrust  and  ultimately  destroy  the  Protocol.  Since  we 
desire  fully  to  perform  our  part  of  the  duty  of  upholding 
the  Protocol  and  abiding  by  the  decisions  of  the  Board 
of  Arbitration,  we  prefer  not  to  be  obliged  to  deal  with 
one  who  has  both  insulted  us  and  assumed  an  attitude  of 
dictatorship  in  the  industry. 

We  regret  exceedingly,  therefore,  to  be  obliged  to  ask 
you  to  designate  someone  with  whom  we  may  continue 
business  relations,  so  that  the  daily  business  may  be  con- 
ducted without  friction. 

Copies  of  this  communication  having  been  sent  to  the 
International  Union,  it  sought  the  advice  of  leading 
trades  unionists  of  the  entire  country,  including  Samuel 
Gompers  and  John  Mitchell,  and  after  careful  review  of 
the  entire  situation  they  advised  the  International  Union 
to  withdraw  its  guarantee  of  the  Protocol  unless  the  local 
board  removed  the  then  Chief  Clerk. 

On  the  7th  of  January,  1914,  the  International  officers 
wrote  the  manufacturers  as  follows,  in  response  to  their 
demand  that  the  Protocol  be  enforced: 

.  .  .  you  are  well  acquainted  with  our  opinion  as  to 
the  fitness  of  Dr.  Hourwich  as  mediator  and  concilia- 
tor. .  .  . 

With  our  best  intentions  to  continue  the  Protocol,  we 
must  admit  that  at  this  time  we  are  powerless  to  take  a 
hand  in  this  controversy.  .  .  . 


THE  CRISIS  OF  1913  1 13 

To  this  the  Association  replied: 

The  Clerks  of  the  Board  of  Grievances  are,  as  you 
know,  officers  of  the  Board  of  Grievances,  who  must 
follow  and  obey  decisions  of  the  Board  of  Arbitration, 
who  must  be  mediators  and  conciliators,  and  must,  of 
necessity,  work  together.  It  seems  to  us,  not  as  a  matter 
of  personality,  but  as  a  matter  of  principle  involving  the 
very  Hfe  of  the  Protocol,  that  either  side  has  the  right  to 
call  the  attention  of  the  other  to  the  actual  fact  that  one 
of  the  Clerks  is  an  impossible  person  in  the  situation. 

Under  the  advice  of  Messrs.  Gompers,  Mitchell  and 
other  leading  trade  unionists,  the  General  Executive 
Board  of  the  International  adopted  a  resolution  recogniz- 
ing the  decision  of  the  Board  of  Arbitration  of  the  pre- 
vious February  to  the  effect  that  the  International 
was  guarantor  for  the  Joint  Board  in  its  dealings  with 
the  manufacturers'  association,  and  that  under  the  de- 
cision of  the  Board  of  Arbitration  of  October  the  guar- 
antee implied  joint  responsibility  and  joint  cooperation 
of  the  officers  of  the  International  Union  with  repre- 
sentatives of  the  Joint  Board  in  carrying  out  the  provi- 
sions of  the  Protocol   and 

Whereas,  The  present  Chief  Clerk,  Dr.  Hourwich, 
who  since  he  attached  his  signature  to  this  arrangement 
made  by  the  Joint  Board  of  Arbitration  has  persistently 
and  systematically  attacked  the  poHcies  of  the  Interna- 
tional Union  and  openly  denounced  its  officers  as  the 
agents  of  the  Manufacturers'  Association  and  has  in 


114  LAW  AND   ORDER  IN  INDUSTRY 

every  way  tried  to  discredit  them  before  our  members  and 
thus  brought  about  a  condition  of  affairs  whereby  he  has 
made  it  impossible  for  the  International  officers  to  work 
in  cooperation  and  harmony  with  him;  and 

Whereas,  His  policies  are  radically  and  fundamentally 
opposed  to  the  policies  and  methods  heretofore  pursued 
by  the  International  officers;  and 

Whereas,  It  is  the  firm  behef  of  the  G.  E.  B.  that  the 
methods  pursued  by  Dr.  Hourwich  are  detrimental  to  the 
best  interests  of  the  members  of  our  organization;  there- 
fore, be  it 

Resolved,  That  the  Joint  Board  of  the  Cloak  and 
Skirt  Makers'  Unions  be  informed  that  under  the  clerk- 
ship and  guidance  of  Dr.  Hourwich  the  International 
Union  cannot  remain  the  guarantor  for  the  Protocol. 

The  adoption  of  these  resolutions  for  the  time  being  only 
increased  the  storm.  It  hailed  epithets  and  rained 
slander.  The  East  Side  press  was  in  all  the  glory  of  a 
strike  campaign,  though  no  strike  had  actually  been 
called.  One  daily  set  itself  out  to  discredit  another. 
Through  it  all  the  learned  doctor's  controversial  skill 
was  the  wonder  of  the  day.  He  was  the  natural  hero  of 
the  irreconcilables.  He  laid  the  President  of  the  Inter- 
national low,  he  laid  its  Secretary  low,  he  drove  out  the 
lawyer  for  the  International.  These  were  the  three  men 
who  in  1910  were  hailed  as  demi-gods  by  the  cloakmakers 
and  carried  upon  their  shoulders  in  triumph. 

The  Federal  Commission  on  Industrial  Relations, 
studying  collective  bargaining  in  practice,  came  to  the 


THE   CRISIS  OF   1913  115 

city  and  held  public  hearings  in  the  City  Hall,  and  came 
to  the  conclusion  that  the  Protocol  had  brought  great 
good  to  the  industry.  For  weeks  the  industry  was  on  the 
verge  of  a  strike.  Everyone  interested  trembled  lest 
1910  be  repeated  and  there  be  a  relapse  into  anarchy. 
The  industry  lay  like  a  sick  patient  tossing  about,  while 
the  doctors  disputed  and  argued.  Finally,  the  Board  of 
Arbitration  held  a  session  (January  11,  1914).  After 
hearing  and  conferring  with  the  three  parties — the 
manufacturers,  the  Joint  Board,  and  the  International 
ofl&cers — and  having  been  advised  by  the  manufacturers 
that  they  intended  to  give  notice  of  the  termination  of 
the  Protocol,  the  Board  publicly  announced  that  the 
Chief  Clerk  could  avert  "'  the  certainty  of  great  suffering 
for  tens  of  thousands  of  men,  women  and  children"  by 
withdrawing  from  the  situation.  Its  recommendation  of 
a  truce  of  eight  days  was  accepted  by  both  parties,  and 
before  the  eight  days  had  expired  the  Chief  Clerk 
resigned. 

Six  months  later,  at  the  Convention  in  Cleveland  of 
the  International  Union,  where  every  local  in  the  coun- 
try was  represented,  the  matter  was  thoroughly  thrashed 
out.  The  International  officers  were  fully  supported  in 
their  action  by  the  vote  of  the  convention.  The  resolu- 
tions are  important: 

Whereas,  Dr.  Hourwich  together  with  some  irre- 
sponsible persons  carried  on  an  agitation  against  the 


Il6  LAW  AND  ORDER  IN  INDUSTRY 

officers  of  the  International  Union,  accusing  them  of 
treason  and  of  being  agents  of  the  Cloak  Manufacturers' 
Association,  because  at  their  Quarterly  Meeting  held  on 
December  20,  19 13,  they  decided  to  inform  the  Joint 
Board,  its  affiliated  locals  and  its  members  that  "under 
the  clerkship  and  guidance  of  Dr.  Hourwich,  the  Inter- 
national Union  cannot  remain  the  guarantor  for  the 
Protocol"  and  because  of  this  decision  Dr.  Hourwich 
and  the  said  persons  accused  the  International  officers  of 
having  helped  the  manufacturers  in  an  alleged  attempt 
to  dictate  to  the  Union  who  its  representatives  shall  be, 
and 

Whereas,  From  the  evidence  and  statements  pre- 
sented at  this  convention  the  delegates  are  convinced 
that  Dr.  Hourwich  has  for  some  time  prior  to  the  date 
of  the  receipt  of  the  said  letter  done  everything  in  his 
power  to  provoke  strife,  dissension  and  ill  will  both 
inside  the  organization,  between  the  members  and  the 
officers,  as  well  as  outside  the  organization,  between  the 
Manufacturers'  Association  and  the  Union  and  that  he 
further  tried  to  induce  the  Cloak  Makers'  Union  of 
New  York  to  abrogate  the  Protocol  and,  after  having 
utterly  failed  in  his  attempts,  he  assumed  an  attitude 
and  pursued  a  policy  in  his  dealings  with  the  manufac- 
turers, calculated  to  provoke  them  and  compel  them  to 
take  the  initiative  to  abrogate  the  Protocol  and  has 
raised  the  fictitious  issue  that  the  manufacturers'  associa- 
tion tried  to  dictate  to  the  Union  who  its  representatives 
shall  be  and  thereby  brought  about  a  condition  of  affairs 
which  made  a  conffict  between  the  Union  and  the  Associa- 
tion almost  inevitable,  and 

Whereas,  It  is  the  judgment  of  the  delegates  to  this 
convention  that  to  undertake  a  fight  with  employers 
because  of  Dr.  Hourwich  would  have  been  a  senseless  act 


THE   CRISIS  OF   1913  117 

of  folly  and  a  crime  against  the  interest  and  welfare  of 
the  workers  engaged  in  the  cloak  trade  in  particular  and 
against  the  International  Union  in  general,  therefore  be  it 
Resolved,  That  the  delegates  to  this  Twelfth  Conven- 
tion go  on  record  as  expressing  their  approval  of  the 
action  of  the  General  Executive  Board  for  having  through 
their  efforts  succeeded  in  restraining  and  preventing  the 
Cloak  and  Skirt  Makers'  Unions  from  entering  into  an 
unnecessary,  unwarranted  and  useless  fight  with  the 
Manufacturers'  Protective  Association  and  congratulates 
the  entire  membership  because  the  International  officers 
were  able  to  maintain  the  integrity  of  the  International 
Union  so  that  it  can  carry  on  in  the  future  the  work  of 
solidifying  the  rank  and  file  of  our  workers  and  thereby 
promote  their  interest  under  the  authority  of  the  Inter- 
national Ladies'  Garment  Workers'  Union.* 

In  addition,  the  convention  went  on  record  as  deciding 
unanimously: 

That  until  some  other  form  of  agreement  has  been 
presented  to  us  which  will  better  safeguard  and  protect 
the  interests  and  welfare  of  our  members  we  are  in  favor 
of  the  Protocol  agreement.f 

SuflScient  time  has  elapsed  to  review  the  crisis  of  1913 
and  to  make  some  deductions  therefrom  in  the  light  of 
the  experience.  The  Chief  Clerk  of  the  union,  around 
whom  centered  the  storm,  was  a  man  of  fine  intellect, 

*  Report  and  Proceedings,  Twelfth  Convention  of  the  International 
Ladies'  Garment  Workers'  Union,  p.  204. 
t  /<f.,  p.  182. 


Il8  LAW  AND   ORDER  IN   INDUSTRY 

broad  culture,  a  lawyer,  a  statistician,  an  economist,  a 
journalist  of  international  repute,  and  it  was  common 
knowledge  that  he  did  not  in  fact  accept  the  philosophy 
of  the  anti-Protocolists.  He  believed  in  the  Protocol  and 
believed  in  it  as  an  instrument  for  preserving  law  and 
order.  He  conceived  of  it,  however,  as  substituting  in 
place  of  the  strike  and  lockout  a  system  of  industrial 
courts  in  which  all  controversial  matters  could  be  dis- 
posed of,  with  a  lawyer  fighting  the  cause  of  principals, 
case  by  case.  He  beUeved  that  the  existing  institutions 
were  inadequate.  The  Board  of  Arbitration,  as  he  saw 
it,  had  failed  fully  to  supply  a  medium  for  litigation. 
The  Board  of  Grievances,  evenly  balanced  in  number, 
was  to  his  mind  always  subject  to  deadlock  and  con- 
sequently could  not  function  properly,  and  in  the  imme- 
diate contact  between  the  two  Chief  Clerks  he  saw  not 
an  opportunity  for  the  exercise  of  great  diplomacy  and 
conciliation,  but  a  matching  of  wit  and  skill  and  the 
pitting  of  the  power  of  one  organization  against  the 
other.  He  was,  indeed,  ready  to  join  in  revising  the 
constitution  of  the  industry  by  installing  what  to  him 
seemed  to  be  a  more  complete  system  of  judicature. 
The  real  agitation  against  the  Protocol  had  begun  long 
before  his  arrival  in  New  York.  He  became,  however, 
the  natural  leader  of  the  anti-Protocolists  in  the  union. 
In  emphasizing  the  judicature  points  in  the  Protocol 
problem,  he  made  the  mistake  that  others  have  made  of 


THE   CRISIS  OF   1913  119 

ignoring  the  fundamental  business  factors  in  the  indus- 
try, and  in  addition  accepted  the  theory  of  continuous 
antagonism  of  interest  between  the  workers  and  the 
manufacturers  as  a  working  hypothesis.  In  endeavoring 
to  make  the  juridical  and  parUamentary  methods  cover 
the  daily  running  of  factories,  he  had  failed  to  learn  the 
lessons  which  the  breaking  down  of  such  systems  in 
political  life,  when  applied  to  similar  problems,  had 
taught  both  laymen  and  lawyers.  Of  course,  in  his 
theory  of  the  justifiable  shop  strike  and  picketing  he 
was  utterly  imsound,  and  when  this  theory  came  up  for 
analytical  examination  by  the  Board  of  Arbitration  it 
was  easily  shattered.  Indeed,  the  basis  for  the  Board's 
decision  on  this  phase  of  Protocol  law  was  to  be  found 
in  the  precedent  established  by  the  doctor  himself. 
Upon  a  previous  occasion  when  the  shop  strike  fever 
broke  and  abatement  of  the  strikes  could  not  be  readily 
secured,  after  repeated  demands,  the  President  of  the 
Employers'  Association  issued  an  order  to  the  clerks  of 
the  Association  that  none  of  them  should  attend  to  any 
grievances  until  the  shop  strikes  were  abated.  The 
Chief  Clerk  for  the  union  (the  doctor  himself)  charged 
the  President  with  having  taken  the  law  in  his  own 
hands,  and  since  the  Protocol  was  to  estabhsh  law  and 
order  this  was  an  offense.  The  Board  of  Arbitration 
sustained  the  doctor  and  rebuked  the  President  of  the 
Employers'  Association.    In  substance  they  said:  "You 


120  LAW  AND  ORDER  IN  INDUSTRY 

believed  you  were  justified  and  we  can  understand  how 
you  were  aggravated,  but  we  must  emphasize  that  so 
long  as  the  Protocol  is  in  existence  neither  side  must 
take  the  law  into  its  own  hands.  While  either  party  may 
terminate  the  Protocol  at  any  time,  until  it  is  terminated 
it  is  the  law  of  the  industry  and  neither  party  may  sus- 
pend its  operation."  This  point  scored  by  the  doctor 
against  the  employers  was  turned  upon  him  when,  in 
effect,  he  suspended  the  Protocol  in  suffering  and  de- 
fending shop  strikes. 

Comparing  now  the  trying  experiences  of  1913  with 
the  two  other  experiences  we  have  studied — the  Board  of 
Sanitary  Control  and  the  Chicago  clothing  situation — we 
observe  the  following  facts  in  the  New  York  experience: 

The  absence  of  uniform,  rational,  cooperative  move- 
ment— the  very  essence  of  success  in  the  Board  of 
Sanitary  Control  and  Chicago  experiences.  We  find  a 
failure  to  take  complete  measure  of  the  business  factors 
in  the  industry.  We  find  a  definite  and  organized  oppo- 
sition within  the  ranks  of  one  of  the  parties  against  the 
scheme  itself.  We  find  that  though  the  leaders  of  the 
International  have  profited  by  experience,  their  lessons 
had  not  yet  sunk  into  the  minds  of  their  constituents. 
There  had  been  a  complete  failure  to  educate  the  workers 
to  the  meaning  of  the  Protocol,  and  as  a  final  result  the 
officers  of  experience,  indeed,  the  men  who  had  brought 
about  the  Protocol  in  19 10,  were  overthrown. 


THE   CRISIS  OF   1913  12 1 

We  may  say,  upon  the  basis  of  this  study,  that  Hy- 
potheses I  and  II  which  we  suggested  in  Chapter  VII 
are  fully  sustained  by  the  New  York  experience. 

On  the  other  hand,  when  we  examine  with  care  the 
proceedings  of  the  International  Convention  in  the 
succeeding  June,  we  find  that  after  six  months  of  re- 
flection and  discussion  the  conservative  representatives 
of  the  union  are  sustained  and  the  convention  denounces 
all  those  who  were  guilty  of  raising  false  issues  and  who 
sought  "to  provoke  them  (the  manufacturers)  ...  to 
abrogate  the  Protocol."  There  is  progress  toward  an 
understanding  and  realization  of  the  value  of  the  in- 
stitutions, but  a  process  of  education  fearfully  expensive 
to  the  industry  itself.  To  destroy  the  tendency  towards 
SjmdicaHsm  in  the  industry  brought  the  industry  to  the 
very  brink  of  a  strike,  resulted  in  eliminating  from  the 
situation  men  who  had  enjoyed  confidence  as  leaders  of 
the  entire  union,  who  themselves  possessed  a  fimd  of 
valuable  practical  knowledge  and  experience.  Ap- 
parently, the  rule  of  progress  is  three  steps  forward,  then 
two  back,  and  a  fresh  start  all  over  again.  The  Board  of 
Arbitration  wholly  justifies  itself  as  an  existing  institu- 
tion. It  focuses  attention  upon  error,  and  though  it  is 
without  power  to  enforce  its  decisions,  it  remedies  by 
applying  clear  reason  to  confusion.  Yet  if  there  had 
been  no  pubUcity,  no  intervention  of  national  labor 
leaders,    no   hearings   before   the   Industrial   Relations 


122  LAW  AND  ORDER  IN   INDUSTRY 

Commission,  the  Board  of  Arbitration  itself  would  have 
fallen.  The  Protocol  proves  its  tenacity  in  times  of  great 
crises.  As  we  shall  see,  though  it  was  terminated  in  1915 
when  another  crisis  arose,  it  came  into  immediate  being 
again;  and  though  the  failures  are  known  in  more  or  less 
complete  detail  to  employers  and  local  unions  in  Boston, 
Philadelphia  and  Chicago,  Protocol  institutions  are 
estabhshed  in  these  cities,  the  language  of  the  instru- 
ment itself  is  copied  almost  verbatim,  and  its  plan  is 
carried  over  to  four  or  five  other  branches  of  the  needle 
industries.  Indeed,  as  this  chapter  is  written,*  Chicago 
cloak  manufacturers  are  following  the  example  of  New 
York,  and  Boston  is  renewing  its  agreement,  utilizing  the 
latest  experience  of  its  sister  city  in  the  East. 

In  short,  when  both  are  brought  to  the  brink  of  dis- 
ruption and  are  face  to  face  with  the  possibility  of  rever- 
sion to  the  anarchical  conditions  preceding  191  o,  they  ac- 
cept the  principle  that  the  methods  of  Law  and  Order  are 
after  all  best  for  securing  Justice  and  Welfare.  Between 
crises,  however,  we  find  a  lack  of  that  fiber  and  dis- 
cipline necessary  to  the  daily  observance  of  law  and 
order.  There  is  no  police  department  and  no  sheriff. 
Public  opinion  comes  into  play  only  when  there  is  an 
acute  situation.  The  lessons  of  self-government  are 
learned  through  suffering,  and  the  training  of  the  people 
interested  is  at  the  expense  of  the  industry  itself.  The 
*  September,  1915. 


THE   CRISIS  OF   1913  123 

student  of  municipal  reform — indeed,  the  student  of 
democratic  institutions  generally — will  find  in  the  fail- 
ures of  this  industrial  development  much  of  similarity 
to  the  failures  of  democratic  government  generally. 


CHAPTER  X 

I914 — THE   COMMITTEE   ON  IMMEDIATE  ACTION 

On  the  union  side  the  men  who  carried  upon  their 
shoulders  the  heavy  problems  of  the  workers,  gave  their 
entire  time  to  the  work.  It  was  their  business.  On  the 
employers'  side,  however,  the  leaders  were  men  whose 
time  was  devoted  primarily  to  the  management  of  the 
single-headed  institutions  described  in  Chapter  VIII. 
This  voluntary  contribution  of  service  by  employers 
in  an  industry  of  such  strain  had  its  limitations.  The 
men  who  in  1910  were  propelled  forward  by  their  vision 
and  faith,  made  unusual  sacrifices.  It  could  not  last. 
One  of  the  expensive  results  of  the  crisis  of  19 13  was  the 
departing  from  activity  on  both  sides  of  leaders  who 
had  had  experience  in  deahng  with  each  other.  With 
these  men  went  a  fund  of  knowledge  and  a  background 
purchased  at  the  expense  of  great  energy.  Human 
memory  is  a  slate  on  which  the  chalk  marks  rub  out  all 
too  easily;  only  those  lessons  engraved  with  hot  and 
sharp  needles  of  suffering  remain.  New  leaders  bring 
new  vitality,  and  if  they  utilize  and  value  the  expe- 
riences of  their  seniors  in  service  and  have  some  reverence 
for  the  lessons  of  the  past,  they  can  do  much  to  move 

124 


1914— THE   COMMITTEE  ON   IMMEDIATE  ACTION     125 

things  forward;  but  if,  with  the  enthusiasm  of  youth, 
they  throw  overboard  the  accumulated  experience  and 
wisdom  of  years  and  resolve  to  get  all  things  new  and 
fresh  for  themselves,  they  will  but  make  the  age-old 
blunder  of  Aladdin's  wife.  There  is  not  much  difference 
in  outward  semblance  between  tablets  of  bicarbonate  of 
soda  and  bichloride  of  mercury.  The  inexperienced  may 
easily  take  one  in  place  of  the  other.  Why  is  education  so 
costly?  Why  do  we  not  learn  by  others'  experience? 
Dr.  Dewey,  in  "Schools  of  To-morrow,"  believes  that 
this  is  the  only  true  process  of  education.  "Learn  by 
doing."  It  is  one  of  the  striking  features  of  the  New 
York  experience  that  education  on  both  sides  is  acquired 
by  the  expensive  repetition  of  failures. 

Following  the  resignation  of  the  doctor,  the  Board  of 
Arbitration,  taking  into  account  the  feelings  and  senti- 
ments on  both  sides,  and  the  strain  upon  employers  of 
work  upon  the  Board  of  Grievances,  offered  as  an  experi- 
ment the  device  of  the  "Committee  on  Immediate 
Action."  There  had  been  much  cry  of  deadlocks  arising 
from  the  evenly-balanced  constituency  of  the  Board  of 
Grievances,  and  though  the  fear  proved,  upon  subse- 
quent examination,*  to  be  wholly  unfounded,  it  did  in 
fact  create  distrust  and  seemed  upon  the  surface  to  have 
some  basis.    With  some  hesitancy  and  as  an  experiment, 

*  See  Bulletin  144,  Bureau  of  Labor  Statistics,  U.  S.  Department  of 
Labor. 


126  LAW  AND  ORDER  IN  INDUSTRY 

the  Board  of  Arbitration  adopted  the  following  rule  under 
which  this  new  Protocol  piece  of  machinery  was  created : 

• 

30.  Committee  on  Immediate  Action.  If  the  chief 
clerks  shall,  after  due  effort  to  conciUate,  fail  to  agree  in 
any  case  arising  under  the  Protocol,  they  shall,  together 
with  a  third  impartial  person  (chosen  hereunder  by  both 
parties)  constitute  a  committee  on  immediate  action, 
which  committee  shall  decide  all  matters  submitted  by  the 
chief  clerks,  except  such  matters  as  involve  Protocol  law. 

The  committee  on  immediate  action  shall,  in  all  in- 
stances, aid  in  the  work  of  mediating  and  conciliating  and 
in  the  enforcement  of  decisions  made. 

Either  party  may  appeal  to  the  board  of  arbitration, 
direct  from  any  award  made  by  said  committee  on 
immediate  action,  but  the  award  shall  stand  pending  the 
determination  of  the  appeal. 

But  the  committee  on  immediate  action  shall  in  no 
case  take  up  the  complaint  of  the  workers  wherein  a 
stoppage  of  work  exists  until  those  stopping  work  shall 
have  returned  to  work. 

31.  The  parties  shall  immediately  agree  upon  the 
third  impartial  person  provided  for  in  the  preceding  rule. 
In  case  the  parties  shall  be  unable  to  agree  upon  such 
third  impartial  person,  he  shall  be  selected  by  a  com- 
mittee consisting  of  the  following: 

(a)  The  president  of  the  American  Federation  of  Labor. 

(b)  The  head  of  the  PoKtical  Science  Department  of 
Columbia  University. 

(c)  The  chairman  of  the  Committee  on  Arbitration  of 
the  Chamber  of  Commerce  of  the  State  of  New  York. 

The  person  so  selected  shall  receive  adequate  com- 
pensation, to  be  borne  equally  by  both  parties. 


1914— THE   COMMITTEE  ON   IMMEDIATE  ACTION    127 

32.  Each  of  the  parties  shall  designate  its  own  chief 
clerk,  who  shall  have  power  to  designate  a  first  deputy. 
Each  chief  clerk  shall  have  power  to  request  his  first 
deputy  to  act  for  him  as  a  member  of  the  committee  on 
immediate  action,  if  circumstances  prevent  his  personal 
attendance.* 

This  machine  worked  as  it  was  expected  to  work. 
During  the  following  year,  through  the  work  of  the  com- 
mittee, ordinary  situations  were  handled  with  expedition 
and  with  good  result,  and  to  those  fundamental  issues 
that  had  been  latent  in  the  situation  for  some  time  the 
Committee  on  Immediate  Action  acted  like  a  poultice 
plaster — it  brought  the  inflammation  to  the  surface. 
Whether  this  was  good  or  bad  or  timely,  remains  to  be 
determined.  Under  the  rule,  though  the  committee  is, 
in  theory,  a  trial  board  of  three,  two  of  the  members  are 
frankly  partisans;  indeed,  act  at  once  as  advocates  and  as 
judges.  In  case  of  deadlock,  therefore,  the  burden  of 
final  decision  falls  upon  the  single  chairman.  It  was 
carefully  provided  that  this  committee  had  no  power  to 
make  Protocol  law.  Its  power  was  limited  to  deciding 
controverted  questions  of  fact.  It  was  during  the  exist- 
ence of  the  Committee  on  Immediate  Action  that  the 
"discharge  issue,"  so  called,  arose  and  brought  about 
the  experiences  of  1914  and  1915.  These  experiences 
were  pregnant  with  lessons  for  the  participants.  Perhaps 
recital  of  them  will  help  others. 

*  Proceedings  of  the  Board  of  Arbitration,  Jan.  24,  1914. 


CHAPTER  XI 


HIRING  AND  DISCHARGING 


"Now  I  shall  lose  my  job"  was  the  first  exclamation 
from  an  unconscious  workman  carried  out  of  a  subway 
cave-in  to  a  neighboring  place  of  relief.  The  impulse 
to  retain  the  place  which  provides  a  means  of  support  is 
an  impulse  strong  enough  to  make  reason  and  judgment 
give  way  before  it.  For  the  man  with  wife  and  child 
dependent  upon  his  earnings  to  philosophize  concerning 
the  alternate  eflfectiveness  of  parliamentary  and  juridical 
methods  as  compared  with  anarchy  is  difficult.  The 
burning  thought  in  mind  is  "How  shall  my  wife  and 
child  be  fed?"  Contact  with  daily  situations  on  the 
part  of  the  social  reformer  creates  a  natural  impatience 
with  existing  conditions.  With  more  than  enough  to  go 
round  in  the  world  and  with  many  overfed,  starving 
people  are  to  be  found  wherever  one  turns.  This  impulse 
for  security  of  tenure  took  on  acute  form  in  the  cloak 
industry.  Small  wonder,  when  we  bear  in  mind  the 
characteristic  temper  of  the  people  engaged  in  it — great 
ambition,  nervous  worry,  and  a  keen  desire  for  better 
things  generally.  The  impulse  for  security  of  tenure 
is  not  limited  to  the  day  or  week  worker.    We  know 

128 


HIRING  AND   DISCHARGING  129 

perfectly  well  that  it  operates  in  everyone  who  works 
and  lives  by  his  labor.  The  civil  service  employee,  who 
never  feels  certain  that  his  salary  will  not,  in  the  interest 
of  public  economy,  be  cut  or  his  position  wholly  abol- 
ished; the  doctor,  the  lawyer,  the  literary  man  whose 
income  is  not  within  his  control,  dependent  very  con- 
siderably on  chance;  and  the  minister,  who  never  knows 
when  devotion  to  principle  will  find,  in  his  expression  of 
views  not  entirely  consistent  with  the  notions  of  his 
congregation,  the  necessity  for  decision  between  main- 
taining self-respect  and  maintaining  a  position.  Nor 
will  any  but  those  ignorant  of  business  conditions  assume 
that  the  average  employer  is  free  from  the  worry,  where 
entire  savings  are  locked  up  in  business  at  the  risk  of 
financial  panic,  bank  or  market  slump;  and  if  for  security 
there  be  investment  in  real  estate  or  stock  and  bonds,  let 
those  who  know  the  effect  of  the  present  war  upon  both 
income  and  values  speak  upon  the  precariousness  of 
returns  from  such  holdings.  The  bankruptcy  court  tells 
abundantly  the  tale  of  the  rich  man  grown  poor  over- 
night, rarely  by  his  own  fault.  The  larger  the  business, 
the  greater  the  liabilities  and  the  greater  the  risk  at 
which  the  assets  are  held.  Like  the  colleges,  we  should 
all  like  to  be  amply  endowed,  for  service  free  from 
financial  worry. 

Uncertainty    of   income,    insecurity    of    reward    for 
service  and  relative  impermanence  of  employment  is  to 


I30  LAW  AND   ORDER  IN   INDUSTRY 

those  who  are  dependent  upon  their  work  for  their 
Hving,  something  always  in  front  of  the  eyes.  Yet  as 
industry  is  conducted  to-day  and  Hkely  to  be  conducted 
for  some  time  to  come,  security  of  tenure  and  certainty 
of  income  must  be  for  hundreds  of  thousands  only  a 
distant  aim.  It  is  a  rare  enterprise  which  can  fix  def- 
initely the  number  of  people  which  it  can  employ  from 
year  to  year  and  provide  continuous  employment  for 
them.  In  an  industry  so  seasonal  in  character  as  the 
manufacture  of  women's  wear,  so  fluctuating  in  the 
demands,  it  is  one  of  the  cruel  business  factors  that 
large  numbers  of  people  must  constantly  be  taken  on 
and  laid  off.  No  business  in  this  industry  could  stand 
the  strain  of  supporting  the  peak-load  for  the  entire 
year. 

But  there  is  another  phase  of  this  unemployment 
problem.  Quite  apart  from  the  incidents  of  casuality  of 
emplo)rment  due  to  the  seasonal  nature  of  the  business  is 
the  necessary  unemployment  arising  from  demands  for 
new  and  greater  efficiency  in  the  work.  In  the  study 
of  the  needs  of  the  industry  for  better  industrial  train- 
ing, the  United  States  Department  of  Labor  concludes: 
"The  industry  faces  the  possibility  of  reaching  the  upper 
limits  of  development  at  an  early  date  unless  a  supply 
of  better- trained  workers  can  be  assured."  *    This  con- 

*  Bulletin  147,  Bureau  of  Labor  Statistics,  Department  of  Labor, 
p.  181. 


HIRING  AND  DISCHARGING  131 

elusion  is  so  important  that  I  have  ventured  to  quote 
it  in  full  in  a  footnote.* 

*  What  the  industry  needs  is  a  new  class  of  workers — designers,  cut- 
ters, tailors,  etc. — who  are  able  not  only  to  adjust  themselves  to  rapidly 
changing  styles  and  turn  readily  and  skillfully  from  the  construction 
of  one  kind  of  garment  to  another,  but  also  to  originate  and  execute  new 
ideas. 

A  second  and  equally  important  need  is  for  workers  possessing  a  higher 
degree  of  artistic  temperament  and  appreciation,  since  the  possession  of 
the  artistic  quality  of  style  means  the  difference  between  success  and 
failure.  The  decision  as  to  the  lines  of  a  garment  is  too  often  left  to 
men  who  have  no  conception  of  the  rules  of  design  or  the  principles  of 
art;  the  responsibility  for  choosing  and  adapting  color  schemes  is  fre- 
quently intrusted  to  those  who  lack  even  a  rudimentary  understanding 
of  color  harmony;  and  the  details  of  ornamentation  are  often  worked 
out  with  no  more  intelligence  and  esthetic  appreciation  than  is  required 
to  manipulate  a  patchwork  puzzle.  Too  much  reliance  is  placed  on 
rules  of  thumb  and  formulas  whose  meaning  and  derivation  are  quite 
beyond  the  comprehension  of  those  who  resort  to  them. 

The  obvious  remedy,  and  the  only  remedy,  for  these  conditions  is 
more  and  better  training  for  the  workers.  The  requisite  skill  in  work- 
manship, artistic  appreciation,  and  creative  abiUty  can  be  secured  in 
no  other  way.  It  is  equally  obvious  that  very  httle  can  be  accomplished 
in  these  directions  by  attempting  to  transform  adult  workers.  Some- 
thing can  be  done  that  is  worth  while,  perhaps,  but  the  hope  of  the  in- 
dustry is  in  the  training  of  younger  workers  than  those  who  constitute 
the  vast  majority  in  this  industry.  An  effort  must  be  made  to  find  all 
those  who  are  still  young  enough  to  be  susceptible  to  the  influence  of 
training  and  to  concentrate  attention  upon  them. 

The  industry  has  undergone  a  significant  evolution  during  the  past 
10  or  15  years,  because  of  the  tremendous  increase  in  the  demand  for 
ready-made  garments.  The  perfection  of  manufacturing  processes, 
the  development  of  factory  organization,  and  the  economies  of  large  scale 
production  have  now  made  available  for  the  great  mass  of  the  people 
garments  of  quahty  and  serviceability  that  25  years  ago  were  within 
the  reach  of  only  the  wealthy.  It  is  very  difficult  to  realize  the  enor- 
mous expansion  in  the  volume  of  business  that  has  taken  place  in  recent 
years.  The  ready-made  garment  made  its  first  appeal  to  the  wearer  of 
cheap  clothing,  and  the  product  was  inferior  to  that  of  the  custom  tailor 


132  LAW  AND  ORDER  IN  INDUSTRY 

The  demand  of  the  industry  for  workers  of  a  higher  and 
better  training  is  one  of  its  immediately  crying  needs, 
and  it  is  obvious  that  to  meet  this  requirement  there  is 
inevitable  a  constant  elimination  of  lesser-trained  for 
better- trained  workers.  "  Very  little  can  be  accomplished 
in  these  directions  by  attempting  to  transform  adult 
workers"  is  the  verdict  of  the  expert  for  the  government. 

Now,  turn  to  the  other  side.  The  underlying  feeling, 
if  not  principle,  of  union  organization  is  solidarity.  Its 
rallying  cry  is  "All  for  one  and  one  for  all."  Through  it 
it  has  built  up  its  membership.  The  very  raison  d'etre 
of  its  existence  is  that  it  is  organized  for  the  protection 
of  even  the  poorest  of  its  members.    It  must  be  against 

both  in  materials  and  workmanship.  With  the  development  of  the 
industry,  however,  the  manufacturer  has  not  only  improved  his  product 
but  he  has  steadily  striven  for  higher  and  higher  classes  of  customers. 
Some  of  the  best  designers  and  mechanics  in  the  business  are  now  in 
the  employ  of  the  better-grade  cloak  and  suit  manufacturers.  The 
product  of  some  of  these  factories  contains  materials  of  as  high  quality 
as  the  market  affords,  and  the  operatives  who  make  the  garments  repre- 
sent skill  of  as  high  grade  as  any  at  the  command  of  the  custom  tailor. 
Since  the  differences  in  quality  of  material  and  workmanship  have  been 
so  largely  done  away  with,  practically  the  only  things  that  the  custom 
tailor  can  supply  his  patron  that  can  not  be  had  from  the  manufacturer 
of  ready-made  garments  are  a  certain  exclusiveness  and  a  kind  of  per- 
sonal service.  Even  the  advantage  of  exclusiveness  is  of  short  duration, 
in  many  cases,  for  the  enterprising  designer  readily  and  promptly  copies 
new  ideas  that  give  promise  of  becoming  popular. 

This  invasion  of  the  field  of  the  medium  and  high-priced  garment, 
however,  has  created  a  real  demand  for  workers  with  higher  degrees  of 
skill,  and  more  of  them.  The  industry  faces  the  possibility  of  reaching 
the  upper  limits  of  development  at  an  early  date  unless  a  supply  of 
better-trained  workers  can  be  assured. 


HIRING  AND  DISCHARGING  133 

the  creation  of  any  "aristocracy"  in  the  industry  among 
its  members.  This,  though  it  accepts  a  minimum  scale, 
recognizes  fully  that  higher-skilled  workers  will  receive 
a  higher  rate  of  pay,  accepts  a  piece-rate  basis  in  which 
compensation  is  affected  by  differences  in  skill  and 
reward.  Indeed,  the  Protocol  freely  recognized  and 
adopted  this  principle  of  discrimination  among  workers 
and  freedom  of  selection  on  the  basis  of  skill.  Linked 
in  the  same  paragraph  with  the  preferential  union 
shop  is  the  provision  that  "since  there  are  differences 
in  degrees  of  skill  among  those  employed  in  the  trade, 
employers  shall  have  freedom  of  selection  as  between 
one  union  man  and  another,  and  shall  not  be  confined 
to  any  list,  nor  bound  to  follow  any  prescribed  order 
whatever." 

In  addition  is  the  factor  of  shop  discipline.  Before 
the  days  of  the  trades  union,  shop  discipline  was  main- 
tained through  government  by  the  employer.  He  was 
the  general  of  the  army.  His  was  the  voice  that  decided. 
The  abuse  of  the  power  he  held  imperiously  led  ultimately 
to  the  organization  of  the  trades  union.  Suddenly  he 
finds  confronting  him  a  vigorous,  militant  organization 
of  working  people.  He  cannot,  in  theory,  question  the 
right  of  his  workers  to  organize  and  deal  with  him  col- 
lectively. He  cannot  question  the  right  of  all  the  workers 
in  the  industry  to  organize.  He  himself  organizes  with 
other  employers.    He  cannot  question  the  right  of  these 


134  LAW  AND  ORDER  IN  INDUSTRY 

organizations  to  work  to  raise  the  standards  of  living 
conditions  for  the  workers,  and  he  must  freely  concede 
the  great  good  such  organizations  have  done.  But  the 
discipline  of  the  factory  must  still  be  maintained.  The 
raising  of  standards  and  providing  for  machinery  for 
redressing  grievances  has  not  obviated  the  necessity 
of  esprit  de  corps  in  the  factory.  No  factory  can  be  run 
without  it.  In  the  old  days  the  employer  got  the  dis- 
cipHne  either  through  winning  over  the  workers  to  a 
sense  of  personal  loyalty  to  him  or  by  the  sheer  brutal 
exercise  of  the  power  to  discharge;  but  for  the  moment 
the  important  fact  to  be  considered  is  that  the  disci- 
pHne  was  secured. 

Now  arrives  the  union  on  the  scene,  organizes  the 
people  in  the  shop,  breaks  down  the  shop  feeling  and  sub- 
stitutes an  industrial  feeUng  of  comradeship,  eliminates 
the  sense  both  of  loyalty  to  and  fear  of  the  employer. 
What  is  substituted  in  place  of  the  older  methods  for 
securing  shop  discipline?  The  discipline  must  be  se- 
cured and  maintained.  Acceptance  of  the  principle  of 
collective  bargaining  does  not  imply  the  surrender  by 
the  employer  of  the  power  to  maintain  discipline  nor  the 
power  to  maintain  efficiency.  Though  this  may  be  mis- 
understood by  workers  generally,  and  though  they  may 
believe  that  through  collective  bargaining  they  can  find 
that  security  of  tenure  so  much  to  be  desired,  the  power 
to  maintain  efl&ciency  and  discipline  must  still  be  left 


HIRING  AND   DISCHARGING  135 

with  the  employer.  It  is  the  checking  of  the  abuse  of 
the  power  only  that,  in  the  present  order  of  society, 
unions  may  insist  upon.  The  unemployment  problem 
is  not  a  shop  problem — it  is  a  community  problem.  To 
keep  individual  workers  in  any  shop  or  even  in  any  in- 
dustry, will  not  solve  the  problem. 


CHAPTER  XII 

I914-I915.      THE  CLASH 

In  Chapter  X  we  analyzed  the  opposing  tendencies  in 
both  directions.  In  the  latter  part  of  19 14,  before  these 
tendencies  came  to  a  clash,  in  reviewing  the  institutions 
of  the  Protocol  and  the  prospects  of  the  future,  I  said: 

As  one  who  has  been  on  deck,  may  I  suggest  that  the 
great  big  problem  of  the  hour  is— How  can  the  national 
movement  for  efficiency  and  economy  be  united  with  the 
national  movement  for  democracy  in  industry?  How 
can  the  discipline  and  efficiency  of  the  shop  be  main- 
tained, yet  the  workers  be  granted  a  larger  share  in  the 
management  of  industry?  No  greater  problem  faces 
this  or  any  other  country  at  the  moment,  though  it  may 
be  overshadowed  for  the  time  being  by  the  smoke  of  the 
battlefield  and  the  thin,  small  voice  "be  hushed  in  the 
noise  of  the  drums."  * 

The  government  meteorological  service  watches  the 
development  of  storm  centers  and  fixes  with  remarkably 
definite  accuracy  the  point  and  time  of  contact  between 
impending  storms.     So  accurate  is  its  information  and 

*  National  Society  for  the  Promotion  of  Industrial  Education,  Bulletin 
No.  20.  Proceedings  Eighth  Annual  Meeting,  Richmond,  Virginia, 
December  9-12,  1914,  p.  131. 

136 


1914-1915.    THE  CLASH  137 

forecast  that  sailors  will  not  go  out  upon  the  Great  Lakes 
or  the  oceans  when  storm  warnings  are  given.  We  need 
a  "storm  service"  for  industrial  difficulties.  In  1914 
storm  signals  were  out  in  the  cloak  industry. 

The  chairman  of  the  Committee  on  Immediate  Action, 
though  successful  in  averting  conflict  in  something  like 
ninety  per  cent  of  the  cases,  soon  found  himself  in  dif- 
ficulty. His  duty  was  to  apply  existing  law  to  facts. 
He  did  not  find  that  in  the  "hire  and  discharge"  issue 
there  was  a  law  sufficiently  explicit  for  him  to  apply.  He 
himself  became  convinced  that  the  rule  had  not  yet  been 
devised  which  he  could  apply  to  such  cases.  So  far  as  the 
law  outside  of  the  industry  was  concerned,  as  established 
by  the  law  courts,  there  was  no  doubt.  A  Kansas  statute 
made  it  illegal  to  discharge  men  for  belonging  to  a  union. 
When  its  constitutionaHty  was  attacked,  the  United 
States  Supreme  Court  held  that  it  was  unconstitutional. 
The  basis  of  the  prevailing  opinion  is  that,  since  the 
employee  in  the  case  was  an  employee  hired  "at  will" 
and  therefore  could  himself  leave  at  any  time,  the  em- 
ployer was  free  to  discharge  him  at  any  time;  and  since 
the  employer  was  free  to  discharge,  he  could  discharge 
for  any  or  no  reason,  and  therefore  could  discharge  him 
upon  the  ground  that  he  belonged  to  a  union.  "Yes," 
held  the  minority,  "where  the  hiring  is  at  will  neither 
party  is  bound  for  any  definite  period  and  therefore  may 
terminate  the  relation  at  any  time;  but  it  does  not  follow 


138  LAW  AND   ORDER  IN   INDUSTRY 

that  the  discharge  may  be  based  upon  any  reason.  If 
the  discharge  is  because  the  worker  belongs  to  the  union, 
it  may  be  against  the  public  interest,  just  as  it  may  be 
against  the  public  interest  if  he  is  discharged  because  he 
belongs  to  the  militia,  and  we  cannot  say  that  the  de- 
termination of  what  constitutes  the  public  interest  in 
such  directions  is  not  for  the  State."  The  minority 
judges  said  upon  this  score: 

There  is  nothing  in  the  statute  now  under  considera- 
tion which  prevents  an  employer  from  discharging  one 
in  his  service  at  his  will.  The  question  now  presented  is, 
May  an  employer,  as  a  condition  of  present  or  future 
employment,  require  an  employee  to  agree  that  he  will 
not  exercise  the  privilege  of  becoming  a  member  of  a 
labor  union,  should  he  see  fit  to  do  so?  In  my  opinion, 
the  cases  are  entirely  different,  and  the  decision  of  the 
questions  controlled  by  different  principles.  The  right 
to  join  labor  unions  is  undisputed,  and  has  been  the  sub- 
ject of  frequent  affirmation  in  judicial  opinions.  Acting 
within  their  legal  rights,  such  associations  are  as  legiti- 
mate as  any  organization  of  citizens  formed  to  promote 
their  common  interest.  They  are  organized  under  the 
laws  of  many  states,  by  virtue  of  express  statutes  passed 
for  that  purpose,  and,  being  legal,  and  acting  within 
their  constitutional  rights,  the  right  to  join  them,  as 
against  coercive  action  to  the  contrary,  may  be  the 
legitimate  subject  of  protection  in  the  exercise  of  the 
police  authority  of  the  states.  This  statute,  passed  in  the 
exercise  of  that  particular  authority  called  the  poKce 
power,  the  limitations  of  which  no  court  has  yet  under- 
taken precisely  to  define,  has  for  its  avowed  purpose  the 


1914-1915.    THE   CLASH  139 

protection  of  the  exercise  of  a  legal  right,  by  preventing 
an  employer  from  depriving  the  employee  of  it  as  a 
condition  of  obtaining  employment.  I  see  no  reason 
why  a  state  may  not,  if  it  chooses,  protect  this  right,  as 
well  as  other  legal  rights.  .  .  . 

There  is  a  real,  and  not  a  fanciful,  distinction  between 
the  exercise  of  the  right  to  discharge  at  will  and  the 
imposition  of  a  requirement  that  the  employee,  as  a 
condition  of  employment,  shall  make  a  particular  agree- 
ment to  forego  a  legal  right.  The  agreement  may  be,  or 
may  be  declared  to  be,  against  public  poHcy,  although 
the  right  of  discharge  remains.  When  a  man  is  dis- 
charged, the  employer  exercises  his  right  to  declare  such 
action  necessary  because  of  the  exigencies  of  his  business, 
or  as  the  result  of  his  judgment  for  other  reasons  sufficient 
to  himself.  When  he  makes  a  stipulation  of  the  char- 
acter here  involved  essential  to  future  employment,  he 
is  not  exercising  a  right  to  discharge,  and  may  not  wish 
to  discharge  the  employee  when,  at  a  subsequent  time, 
the  prohibited  act  is  done.  What  is  in  fact  accomplished, 
is  that  the  one  engaging  to  work,  who  may  wish  to  pre- 
serve an  independent  right  of  action,  as  a  condition  of 
employment,  is  coerced  to  the  signing  of  such  an  agree- 
ment against  his  will,  perhaps  impelled  by  the  necessi- 
ties of  his  situation. 

The  majority  judges,  quoting  the  opinion  of  Mr.  Justice 
Harlan  in  the  Adair  case  (208  U.  S.  161)  said: 

While,  as  already  suggested,  the  right  of  liberty  and 
property  guaranteed  by  the  Constitution  against  dep- 
rivation without  due  process  of  law  is  subject  to  such 
reasonable  restraints  as  the  common  good  or  the  general 


I40  LAW  AND  ORDER  IN  INDUSTRY 

welfare  may  require,  it  is  not  within  the  functions  of 
government — at  least,  in  the  absence  of  contract  be- 
tween the  parties — to  compel  any  person  in  the  course  of 
his  business  and  against  his  will  to  accept  or  retain  the 
personal  services  of  another,  or  to  compel  any  person, 
against  his  will,  to  perform  personal  services  for  another. 
The  right  of  a  person  to  sell  his  labor  upon  such  terms  as 
he  deems  proper  is,  in  its  essence,  the  same  as  the  right 
of  the  purchaser  of  labor  to  prescribe  the  conditions  upon 
which  he  will  accept  such  labor  from  the  person  offering 
to  sell  it.  So  the  right  of  the  employee  to  quit  the  service 
of  the  employer,  for  whatever  reason,  is  the  same  as  the 
right  of  the  employer,  for  whatever  reason,  to  dispense 
with  the  services  of  such  employee.  It  was  the  legal 
right  of  the  defendant  Adair — however  unwise  such  a 
course  might  have  been — to  discharge  Coppage  (the 
employee  in  that  case)  because  of  his  being  a  member  of 
a  labor  organization,  as  it  was  the  legal  right  of  Coppage, 
if  he  saw  fit  to  do  so, — however  unwise  such  a  course  on 
his  part  might  have  been, — to  quit  the  service  in  which 
he  was  engaged,  because  the  defendant  employed  some 
persons  who  were  not  members  of  a  labor  organization. 
In  all  such  particulars  the  employer  and  the  employee 
have  equahty  of  right,  and  any  legislation  that  disturbs 
that  equality  is  an  arbitrary  interference  with  the  Uberty 
of  contract,  which  no  government  can  legally  justify 
in  a  free  land.* 

Thus  we  find  judges  of  the  highest  court  in  the  land  unit- 
ing in  agreement  that  it  is  a  corollary  of  the  principle 
of  human  liberty  that  where  the  worker  is  free  to  leave 
at  any  time,  the  employer  is  equally  free  to  let  him  go, 

*  Coppage  V.  Kansas,  236  U.  S.  i. 


1914-1915.    THE   CLASH  141 

the  exception  of  the  minority  judges  being  based  solely 
upon  the  ground  that  if  the  employer  would  keep  the 
worker  but  for  the  man's  membership  in  the  union, 
there  is  underlying  this  kind  of  discharge  an  infringement 
of  the  liberty  of  the  worker,  in  that  he  is  prevented  from 
joining  a  union — thus  the  constitutional  basis  for  legis- 
lative enactment  upon  the  subject. 

In  another  case  the  union  was  sued  for  conspiracy  by  a 
former  member,  claiming  that  he  had  been  discharged 
by  reason  of  the  request  of  the  union.  The  decision  of 
the  court  in  effect  was  a  statement  to  the  complainant 
that  since  he  was  an  employee  at  will  and  could  leave  at 
any  time,  the  employer  could  discharge  him  at  any  time. 
''That  he  discharged  you  because  the  union  requested 
it  gives  you  no  cause  of  action.  You  never  had  a  per- 
manent right  to  your  job;  therefore,  you  could  not  lose 
it."  Thus  the  law  of  the  courts  is  clear.  The  principle 
of  liberty  of  contract  is  applied  equally  to  employer  and 
to  worker.  "If  you  are  free  to  go  at  any  time,  your 
employer  is  free  to  let  you  go  at  any  time."  * 

The  Protocol  did  not  change  the  "hiring  at  will" 
relationship  between  individual  employer  and  individual 
worker.  Except  later  by  agreement  in  the  specific 
cases  of  a  few  week  workers,  there  was  no  term  of  em- 

*  Any  man,  in  the  absence  of  a  contract  to  work  a  definite  time,  is 
held  in  Roddy  v.  United  Mine  Workers,  41  Okla.  621,  139  Pac.  126, 
L.  R.  A.  1915  D,  789,  to  have  a  right  to  quit  whenever  he  chooses, 
for  any  reason  satisfactory  to  him,  or  without  any  reason. 


142  LAW  AND  ORDER  IN  INDUSTRY 

ployment,  and  it  was  the  practice  for  workers  to  leave 
even  at  the  height  of  the  season  to  seek  new  employ- 
ment, if  they  could  better  their  positions.  While  in 
some  small  shops  where  the  workers  were  relatives  and 
friends  of  the  employer,  it  might  be  true  that  employees 
continued  during  the  slack  season,  playing  cards  or 
otherwise  amusing  themselves  club- fashion  in  the  factory 
while  waiting  for  work,  this  was  not  true  in  the  industry 
generally.  It  was  not  practicable  in  plants  of  loo  or 
200  employees. 

The  chairman  of  the  Committee  on  Immediate  Action, 
recognizing  the  gravity  of  this  conflict  between  both 
parties  to  the  Protocol,  himself  presented  the  issue  to 
the  Board  of  Grievances  for  determination.  In  the  fac- 
tory of  Nathan  Schuss,  the  employer  had  laid  off  52 
men  at  the  end  of  the  season.  He  had  had  in  his  employ 
a  foreman  who  was  about  to  go  into  partnership  with 
somebody  else.  This  foreman  had  been  with  the  con- 
cern for  twelve  years.  During  the  latter  part  of  his 
administration,  the  employer  found  that  a  large  portion 
of  his  product  had  been  returned  by  customers  as  im- 
perfectly made.  In  one  instance  an  entire  bill  of  $1 ,200.00 
had  been  returned  upon  the  ground  of  poor  workman- 
ship. In  discharging  the  foreman,  he  discovered  that  a 
very  considerable  number  of  men  in  the  department  were 
either  relatives  or  friends  of  the  foreman.  The  foreman 
having  announced  that  he  was  going  to  begin  his  own 


1914-1915.    THE   CLASH  143 

factory,  the  employer  decided  that  he  would  reorganize 
the  department  entirely.  He  claimed  the  right  to  dis- 
charge such  of  his  employees  as  he  chose  at  the  end  of 
the  season  and  to  reemploy  such  of  them  as  he  should 
think  proper,  or  to  fail  to  reemploy  such  as  he  might 
not  wish  to  reemploy.  The  union  charged  that  this  act 
in  itself  constituted  "a  direct  present  violation  of  the 
Protocol";  that  after  the  worker  was  hired  and  retained, 
after  trial,  he  had  a  right  to  the  position  "until  such  time 
as  the  employer  remains  in  the  same  business,  and  the 
employee  is  not  (affirmatively)  guilty  of  any  misconduct, 
and  has  not  become  incompetent  to  perform  his  work." 
This  situation  having  been  presented  to  the  impartial 
chairman,  he  certified  "that  the  issues  presented  in 
these  cases  are  not  the  kind  that  were  intended  to  be 
passed  on  by  him,  that  he  is  not  clothed  with  adequate 
power  to  decide  them,  and  he  shrinks  from  exercising  a 
prerogative  not  clearly  conferred  upon  him."  In  sub- 
mitting the  problem  to  the  Board  of  Grievances,  the 
chairman  made  the  following  suggestion: 

The  issues  submitted  herein  relate  primarily  to  the 
division  of  power  between  the  employers  and  their 
association  and  the  workers  and  their  union.  They 
belong  to  the  class  of  cases  that  are  in  the  highest  degree 
provocative  and  calculated  to  promote  strife.  They 
cannot  be  settled  by  either  side  forcing  its  own  interest 
to  the  disregard  of  the  interest  of  the  other.  A  true 
solution  is  only  possible  if  both  interests  are  recognized 


144  LAW  AND  ORDER  IN  INDUSTRY 

and  their  divergent  lines  are  made  to  converge.  This 
can  be  better  done  by  thinking  than  by  fighting;  by 
ingenuity,  by  invention,  by  construction,  rather  than  by 
force.  In  the  present  instance,  the  interest  of  employers 
seems  to  center  on  securing  of  mobility,  economy,  and 
efiiciency  in  the  selection  of  their  working  force;  while 
that  of  the  union  centers  around  protection  against 
discrimination  and  loss  of  power.  It  does  not  appear  that 
these  two  interests  are  incompatible  or  irreconcilable, 
and  it  is  believed  that  an  earnest  effort  to  find  a  solution 
in  mutual  good  faith  and  good  feeling  may  be  expected  to 
give  a  working  solution. 

The  parties  deadlocked  and  the  matter  went  to  the  Board 
of  Arbitration.*  It  was  thrashed  out  in  December,  1914, 
before  the  full  Board.  In  the  course  of  the  argument, 
counsel  for  the  union  said: 

In  regard  to  retaining  men,  we  absolutely  militate 
against  the  principle  of  recognizing  merit  as  a  ground  for 
retention,  as  a  ground  for  preference  over  the  man  that 
is  less  skilled,  and  we  say  this,  that  this  is  the  principle 
upon  which  our  organization  rests,  and  with  which  it  will 
have  to  stand  or  to  fall,  and  that  is  the  principle  that  the 
organization  is  not  here  in  order  to  allow  the  so-called 
free  play  of  nature  or  competitive  forces,  which  will 
pick  out  twenty  thousand  men  out  of  fifty  thousand 
men,  or  women  for  that  matter,  and  secure  them  con- 
stant, permanent  and  lucrative  employment  and  leave 
the  thirty  thousand  other  men  and  women  to  smaller 
remuneration  during  seasons,  and  to  no  earnings  of  any 
kind,  and  starvation,  after  season,  f 

*  Louis  D.  Brandeis,  Hamilton  Holt,  William  O.  Thompson. 
t  Proceedings,  Board  of  Arbitration,  December  19,  1914,  p.  84. 


1914-1915.    THE  CLASH  I4S 

Again: 

I  do  not  know  whether  the  Board  fully  appreciates  the 
importance  of  these  questions,  and  I  want  to  impress 
upon  you  that,  as  far  as  we  are  concerned,  it  is  not 
merely  a  question  of  substantial  reHef  that  we  demand, 
but  for  us  it  is,  and  let  us  be  perfectly  plain  and  frank 
about  it,  a  question  of  the  existence  or  non-existence  of 
the  Protocol  and  of  our  estabhshed  relations  with  our 
employers.  .  .  . 

In  other  words,  as  far  as  we  are  concerned,  and  I 
cannot  make  it  too  plain,  it  is  the  question  of  the  Ufe  or 
death  of  the  Protocol.* 

This  issue,  thus  forced  to  the  front,  was  accepted  in 
the  same  seriousness  by  the  manufacturers.  Indeed, 
as  both  sides  saw  it,  the  discharge  issue  meant,  unsolved, 
the  life  or  death  of  the  Protocol.  The  name  "discharge 
issue"  was  a  misnomer.  It  implied  that  the  employers 
desired  entire  abandonment  of  the  policy  of  redress  of 
grievances  that  had  been  in  force  for  five  years  and  that 
they  wished  the  free  exercise  of  their  legal  rights  to  dis- 
charge at  will,  without  review.  As  matter  of  fact,  they 
were  ready  to  review  any  discharge  where  a  real  griev- 
ance existed  or  was  asserted.  The  real  issue  was,  What 
is  a  grievance?  At  the  time  of  signing  the  Protocol  the 
"grievances"  in  mind  were  those  commonly  accepted 
as  such  by  employers  and  employees  generally.    It  was 

*  Proceedings,  Board  of  Arbitration,  December  19,  1914,  pp.  107,  108, 
no. 


146  LAW  AND  ORDER  IN  INDUSTRY 

not  suspected  that  in  time  the  mere  act  of  discharge  in 
itself  would  be  regarded  as  a  grievance.  Quite  apart 
from  the  law  of  the  situation,  the  termination  at  will  of 
an  employment  which  has  no  time  limit  was  not  looked 
upon  as  something  morally  wrong.  The  underlying 
theory  of  the  union's  position  in  191 5  was,  in  truth, 
that  by  virtue  of  retention  for  a  period  of  more  than 
two  weeks,  the  worker  acquired  a  status  in  the  shop. 

Two  of  the  investigators  for  the  Federal  Industrial 
Relations  Commission  agree  that  in  cases  of  strike  the 
workmen  "feel  that  they  have  a  property  interest  in 
their  jobs,  and  that  other  workmen  who  take  their 
places  are  fit  subjects  for  abuse,  ridicule  and  violence.* 
"They  want  the  jobs  which  they  think  are  theirs.  In 
order  that  they  may  get  the  jobs,  it  is  necessary  to  pre- 
vent others  from  taking  them."  f  Again,  "to  the  union 
man,  the  union  means  something  more  than  a  machine 
to  maintain  fair  wages  and  working  conditions.  It  means 
an  agency  for  securing  employment,  if  employment  is  to 
be  had  in  his  particular  craft.  The  union  man  pays 
dues  into  his  union  for  protection."  |  "The  aim  of  the 
union  is  to  have  a  monopoly  of  work  in  a  particular 
trade."  §      Now  it  was  this  precise  issue  that  in  the 

*  Report  on  the  Colorado  Strike,  George  P.  West,  p.  103;  Report  on 
Bridge  and  Structural  Ironworkers,  Luke  Grant,  p.  109. 
t  Luke  Grant:  Id.,  pp.  109-110. 
%  Luke  Grant:  Id.,  p.  134. 
§  Luke  Grant:  Id.,  p.  135. 


1914-1915.    THE  CLASH  147 

cloak  industry  was  fought  out  in  1910  under  the  title  of 
"the  closed  shop."  It  was  precisely  this  monopoly  that 
the  employers  would  not  assent  to.  And  if  we  refer  back 
{ante,  p.  21)  to  the  profifer  of  the  "preferential  union 
shop"  we  will  find  that  one  of  its  essential  elements  was 
that  not  only  should  the  union  be  open  to  all  workers  in 
the  trade,  but  that  the  employer  should  have  the  utmost 
"freedom  of  selection."  In  191 5,  the  issue,  mark  you, 
was  not  over  the  substitution  of  a  non-union  man  for  a 
union  man,  but  the  substitution  of  one  union  man  for 
another,  or  by  reduction  of  staff  the  substitution  of  none 
in  place  of  the  men  laid  off.  This  point  of  view  of  union 
men  is  to  be  distinguished  from  the  aim  at  security  of 
tenure  discussed  in  Chapter  XI.  The  latter  is  a  common 
and  a  justifiable  aim,  but  it  recognizes  that  so  long  as 
industry  is  run  by  employers  as  administrators  and  the 
administrative  function  requires  for  its  exercise  the 
freedom  to  decide — the  freedom  to  choose,  a  decision 
made  bona  fide  by  the  employer  should  not  be  reversed, 
even  if  it  result  in  misfortune  to  the  worker.  To  turn 
over  to  a  tribunal  general  review  of  the  exercise  of 
administrative  power  is  to  run  industry  by  tribunals. 
Some  day  we  may  be  able  to  create  a  judicial  system 
adequate  to  review  all  administrative  acts,  but  it  is  not 
yet  in  sight.  No  tribunal  could  be  invented  to-day  that 
could  function  in  such  a  capacity  in  a  large  industry. 
If  the  employee  had  a  status,  it  is  clear  that  he  could  snap 


148  LAW  AND  ORDER  IN  INDUSTRY 

his  fingers  at  discipline  and  need  not  care  about  the 
efficiency  of  his  work.  And  in  an  industry  so  complex,  so 
full  of  inherent  difficulties  as  the  cloak  industry,  so 
utterly  without  tests  of  efficiency  upon  which  judicial 
review  could  be  based,  the  policy  contended  for  by  the 
union  would  have  destroyed  the  industry.  The  em- 
ployers so  believed.  They  believed  that  so  long  as  they 
were  charged  with  the  duties  of  administrators,  it  was  a 
corollary  of  the  principle  of  liberty  that  they  should 
have  the  necessary  freedom  to  decide.  They  regarded  it, 
therefore,  as  much  a  matter  of  principle  to  them  as  their 
fight  in  1910  over  the  closed  shop.  On  the  other  hand,  it 
was  quite  obvious  that  the  union  sentiment  upon  this 
subject  was  so  strong  that  no  group  of  leaders  could  have 
agreed  upon  modification  of  its  position  without  losing 
the  confidence  of  the  membership.  To  them  also  it  was  a 
matter  of  principle.  When  counsel  for  the  union  said  in 
effect:  ''The  union  is  here  to  stand  for  all  its  members; 
by  this  we  stand  or  fall,"  he  was  expressing  truly  the 
voice  of  the  union. 

Here,  then,  was  conflict  of  principles,  such  conflict  as 
makes  for  war,  international  and  civil.  The  North  says, 
"You  may  not  treat  men  as  property."  The  South  says, 
"We  have  done  so  under  the  Constitution;  we  shall  con- 
tinue to  do  so  hereafter  as  matter  of  right."  War  re- 
sults. One  European  nation  says,  "The  self-interest  of  a 
nation  is  higher  than  a  treaty  of  neutrality."    Another 


1914-1915.    THE   CLASH  149 

says,  "A  treaty  is  a  treaty,  to  be  observed  at  any  cost." 
War  results.  In  international  relations  our  only  estab- 
lished method  for  deciding  such  conflicts  of  principle  is 
by  war.  In  191 5  the  generally  accepted  method  for 
deciding  similar  conflicts  in  industry  is  by  force.  Says 
the  Erectors'  Association,  "We  will  not  grant  you  the 
closed  shop."  Says  the  union,  "We  must  have  it;  it  is 
essential  to  our  Hfe."  There  being  no  other  solution 
apparent,  there  is  war — murder,  anarchy,  culminating 
finally  in  the  dynamite  outrages  and  the  MacNamara 
convictions.  Say  the  Colorado  operators,  "We  will  not 
deal  with  your  union."  Say  the  miners,  "You  must,  for 
it  is  our  very  Hfe,  social,  political,  industrial;  all  depends 
upon  it."  Then  follows  war,  murder,  the  breaking  down 
of  civil  government,  with  its  culmination  in  the  Ludlow 
killings.  The  world  stands  aghast,  yet  with  more  or 
less  complacency  pays  the  price  (as  it  is  doing  on  the 
battlefields  of  Europe)  and  accepts  the  solution  of  force 
as  the  only  way  of  "practical  men." 

To  the  student  of  judicature,  it  all  seems  stupid,  for 
great  moral  issues  are  settled  by  debate  both  in  courts  of 
law  and  in  parliaments,  and  progress  is  made  even 
through  error  and  failure.  The  rights  of  men  are  defined 
by  process  of  reasoning,  decision,  criticism,  reversal, 
decision.  Take  the  whole  present  trend  of  the  law  on 
social  questions — how  changed  it  is  from  what  it  was 
half  a  century  ago.     Only  a  decade  ago,  the  United 


I50  LAW  AND  ORDER  IN  INDUSTRY 

States  Supreme  Court  was  criticised  as  the  resting  place 
of  old  men  of  obsolete  economic  views;  to-day  its  deci- 
sions sustaining  the  ''essential  human  rights"  of  men  are 
quoted  by  every  social  reformer.  So  to  the  lawyer,  the 
gravity  of  the  issue  does  not  make  him  despair  of  its 
solution  by  the  processes  of  reason,  and  he  accepts 
temporary  defeat  of  the  principle  itself,  for  he  knows  that 
in  the  end  the  right  will  triumph  by  this  process.  The 
minority  becomes  the  majority  view  sooner  than  the 
public  suspects — if  the  minority  view  is  the  sound  one. 
The  recorded  opinion  of  the  minority  judge  is  read  and 
re-read  and  when  its  truth  becomes  clear,  spreads  over 
and  conquers  the  field  of  error.*  The  same  rule  applies  to 
legislation.  The  protests  of  this  year's  minority  are  the 
controlHng  view  of  next  year's  majority. 

How  can  force  accompUsh  an  equivalent  result? 
The  conflict  of  principles  is  not  determined.  Right  does 
not  become  right  because  superior  force  strengthens 
wrong.  It  may  be  beaten  down  for  the  time  being,  but 
"truth  crushed  to  earth  will  rise  again."  So  the  conclu- 
sion is  inevitable  that  though  "many  instances  might  be 
cited  in  the  industrial  world,  where  the  use  of  physical 
force  has  for  a  time  won  advantage  for  the  side  that  has 
used  it.  Such  gains,  however,  are  temporary  and  do  not 
make  for  permanent  industrial  peace.  .  .  .  Force  may 
subjugate  one  side  or  the  other  in  an  industrial  dispute, 

*  See  Abbot:  "Justice  and  the  Modern  Lawyer." 


1914-1915.    THE   CLASH  15 1 

but  it  will  not  remove  discontent.  It  will  not  establish 
justice.  When  one  side  is  all-powerful  and  the  other 
side  is  subservient,  there  is  sure  to  be  injustice.  Where 
there  is  injustice,  there  will  be  discontent."  * 

The  advocates  of  collective  bargaining,  in  pressing 
their  method  forward  as  the  way  to  industrial  peace, 
fail,  however,  to  make  sufiScient  allowance  for  the  fact 
that  latent  in  all  industrial  situations  are  grave  moral 
issues  still  unsolved, — principles  not  yet  defined;  grave 
issues  like  the  ones  dramatically  arising  in  the  cloak 
industry  in  1910,  1914  and  191 5  and  asserting  them- 
selves in  the  structural  iron  trades  and  in  the  Colorado 
mines  as  in  the  cloak  industry  in  New  York.  Moreover, 
in  industrial  matters  these  moral  issues  are  of  the  most 
elementary  nature; — we  are  yet  in  the  kindergarten 
stage  of  education  upon  this  branch  of  our  ethics.  Mere 
"bargaining"  will  not  settle  such  matters;  mere  com- 
promise, negotiation,  mediation,  conciliation.  These 
fail,  as  they  did  in  1910,  1914  and  191 5  in  the  cloak  in- 
dustry, as  they  did  in  the  structural  iron  and  coal  in- 
dustries. They  must  fail.  How  can  it  be  otherwise? 
Shall  either  side  sacrifice  its  convictions?  The  world's 
charter  of  liberties  is  made  up  of  the  sacrifices  for,  not 
of,  convictions.  It  may  be  true  that  so  far  as  poHtical 
liberty  is  concerned,  revolution  was  necessary,  and  we 

*  Report  on  Bridge  and  Stxuctural  Ironworkers,  by  Luke  Grant, 
P-  139- 


152  LAW  AND   ORDER  IN  INDUSTRY 

are  to-day  enjoying  the  fruits  of  the  revolutionists* 
sacrifices.  But  revolution  in  industry,  as  we  have  seen, 
does  not  and  cannot  make  for  real  progress,  and  if  it 
does  not,  who  shall  say  that  either  union  or  employers' 
association,  acting  under  joint  agreement,  shall  surrender 
convictions  honestly  believed  in?  Far  better  were  it 
that  all  Protocols — all  trade  agreements — should  go 
than  that  men  shall  consciously  compromise  what  they 
believe  to  be  their  principles.  Shall,  then,  the  alternative 
be — for  either  side — Compromise  of  Principle  or  Con- 
test of  Force? 


CHAPTER  XIII 

I915.     THE  BOARD  OF  ARBITRATION.     WHAT  IS  "fAER  AND 

reasonable"? 

If  "bargaining"  fails,  what  then?  Under  the  Protocol 
both  sides  were  committed  to  the  submission  to  the 
existing  Board  of  Arbitration  for  judicial  determination 
of  just  such  controversies  as  these.  For  nearly  five  years 
this  method  had  been  employed  successfully.  The  Board 
had  made  all  of  its  decisions  unanimously  and  all  of  its 
decisions  had  been  accepted  by  both  parties.  The 
serious  action  of  the  Board  in  January,  1914,  in  urging  the 
representative  of  the  union  to  resign — probably  one  of 
the  most  remarkable  recommendations  ever  made  in  a 
labor  controversy  by  an  impartial  tribunal — was  ac- 
cepted by  the  union  and,  as  we  have  seen,  received  ul- 
timately the  ofl&cial  endorsement  of  the  union  convention. 
The  Board  had  never  lacked  courage  in  meeting  issues 
squarely,  though  it  employed  tact  and  diplomacy  wher- 
ever it  could  and  sought  always  to  conciliate  rather  than 
to  arbitrate. 

The  decision  of  the  Board  of  Arbitration  on  the  "dis- 
charge" issue  was  handed  down  on  the  21st  of  January, 
1915.    It  is  quoted  in  full  as  Appendix  C.    After  review- 

153 


154  LAW  AND   ORDER  IN  INDUSTRY 

ing  the  history  of  the  Protocol  and  the  purposes  under- 
lying its  making,  the  Board  found  that  "of  the  essence 
of  its  existence,  must  be  a  spirit  of  fairness"  and  that 
it  must  be  understood  ''as  a  basis  for  any  proper  inter- 
pretation of  it  and  application  of  it  that  the  parties 
desire  by  its  provisions  to  promote,  foster  and  develop 
square  dealings  in  all  of  the  relations  of  employer  and 
employee;  .  .  .  that  unreasonable  acts  or  demands  are 
not  to  be  expected  from  either  of  the  parties,  and  that 
anything  of  that  nature  would  be  in  violation  of  the  funda- 
mental purpose  of  the  Protocol."  That  applying  these 
basic  principles,  "the  spirit  of  fairness  and  the  rule  of 
reason  be  used  to  determine  whether  or  not  an  employee 
should  be  discharged;  that  the  right  of  determining  this 
must  in  the  first  instance  rest  with  the  employer,  and 
that  any  employee,  deeming  himself  unjustly  treated, 
has  a  right  to  make  his  complaint  and  have  his  grievance 
heard  in  the  regular  manner."  The  Board  then  decides 
that  in  the  hearing  of  discharge  cases  the  parties  ad- 
ministering the  Protocol  are  "to  look  into  all  the  facts 
and  to  apply  the  same  standards  for  determining  the 
case,  thus  eliminating  the  burden  of  proof  from  all 
consideration."  The  Board  then  said:  "The  power 
of  administration,  discipline  and  discharge,  vested  in 
the  employer  shall  be  exercised  in  a  fair  and  reasonable 
manner,  and  if  the  propriety  of  the  action  is  questioned, 
shall  be  subject  to  review."   For  the  purpose  of  determin- 


THE  BOARD  OF  ARBITRATION  155 

ing  what  is  "fair  and  reasonable"  the  Board  said  that 
the  spirit  and  purpose  of  the  Protocol  included  the  fol- 
lowing: 

First.  To  assist  the  employer  in  the  peaceful  and 
uninterrupted  operation  of  his  factory,  in  establishing 
and  maintaining  reasonable  discipline,  and  in  promoting 
such  economy  and  efficiency  of  production  as  may  be 
secured  by  cooperative  effort. 

Second.  To  assist  the  Union  in  establishing  the 
strength  and  efficiency  of  its  organization,  and  raise  the 
standard  throughout  the  trade,  to  the  end  that  the 
Union  power  may  be  adequate  to  carry  the  responsibili- 
ties and  perform  the  duties  imposed  upon  it  by  the 
Protocol,  and  to  promote  the  cooperation  and  good  will 
between  the  Union  and  the  Association,  so  essential  to 
the  successful  operation  of  the  Protocol,  and  to  the 
solution  of  the  problems  of  the  industry. 

Third.  Subject  to  the  foregoing  provisions,  to  assist 
the  individual  worker  in  obtaining  such  security  and 
continuity  in  his  employment,  such  equity  in  the  dis- 
tribution of  work  and  such  fairness  of  general  treatment 
and  of  conditions  as  may  be  possible  and  practicable, 
having  regard  to  the  unavoidable  fluctuations  and 
exigencies  of  the  work,  and  the  imperfections  and  limita- 
tions of  ordinary  human  nature  by  which  this  enor- 
mously difficult  industry  must  be  administered. 

The  Board  then  went  on  to  discuss  the  fundamental 
problems  of  the  industry — the  matters  of  standardiza- 
tion of  prices,  the  enforcement  of  standards  throughout 
the  industry,  and  the  need  for  devising  ways  and  means 


IS6  LAW  AND  ORDER  IN  INDUSTRY 

to  release  the  energies  and  the  time  of  those  now  engaged 
in  the  disposition  of  individual  grievances  for  attention 
to  the  larger  problems  of  the  industry. 

It  will  be  observed  that  the  Board  said  nothing  about 
the  term  of  hiring  except  that  the  rights  of  the  parties, 
unless  modified  by  the  Protocol,  remained  as  they  were 
before.  The  Board  said:  "It  was  not  intended  by  the 
Protocol  to  change  the  relation  of  the  employer  to  the 
employee,  otherwise  than  as  I  (we)  have  stated  and  as  is 
expressly  stated  in  the  Protocol.  In  all  other  respects 
the  legal  rights  were  to  remain  what  they  had  been 
before."  The  Board,  however,  found  that  by  signing 
the  Protocol,  the  union  "relinquished  its  right  to  secure 
by  strike  more  than  it  was  getting,  and  there  was  sub- 
stituted for  that  reHnquished  power  of  strike,  the  powers 
created  under  this  agreement,  which  constitutes  a  govern- 
ment to  control  the  relations  between  employer  and 
employee";  and  that  the  Protocol  had  substituted  for 
the  strike  as  a  means  by  which  the  union  might  enforce 
"the  fair,  just  and  reasonable  exercise  by  the  employer 
of  his  legal  rights  in  regard  to  the  administration  of 
business,  and  in  regard  to  hiring  and  discharging," 
the  machinery  for  redressing  grievances. 

It  will  be  seen  that  the  Board  does  not  sustain  the 
appeal  of  the  union.  It  places  its  rehance  upon  the  rule 
of  "fair  and  reasonable"  appHed  to  the  facts  of  each 
case  as  it  arises,  and  gives  to  the  union  the  right  to  re- 


THE  BOARD   OF  ARBITRATION  157 

view  every  case  where  it  feels  aggrieved.  It  did  not  order 
the  reinstatement  of  the  Schuss  workers.  On  the  other 
hand — as  became  clearer  with  the  lapse  of  time — the 
determination  of  what  is  "fair  and  reasonable"  in  the 
circumstances  of  the  case  could  only  be  made  with  a 
clear,  definite  guiding  principle  as  a  base.  With  the 
underlying  clash  of  philosophies  of  employment  in  the 
situation — the  union  fighting  for  one  theory,  the  em- 
ployers for  another — the  decision  of  the  Board  of  Arbitra- 
tion, as  practically  applied,  meant  inevitably  a  series  of 
litigated  test  cases,  through  which  might  be  evolved  a 
guiding  set  of  principles.  The  impartial  chairman  had 
no  power  to  make  "Protocol  Law":  therefore  he  could 
not  begin  the  process  of  evolution.  The  decision  of  the 
Board  of  Arbitration,  as  we  shall  see  later,  did  actually 
bring  about  further  litigation.  It  came  up  for  the  con- 
sideration of  an  entirely  new  tribunal — the  Mayor's 
Council  of  Conciliation  {post,  Chapter  XV).  The  crea- 
tion of  this  Council  and  the  circumstances  leading  up  to 
it  make  in  themselves  an  instructive  chapter. 


CHAPTER  XIV 

THE  TERMINATION  OF  THE  PROTOCOL 

After  the  rendition  of  the  decision  of  the  Board  of 
Arbitration,  its  lack  of  conclusiveness  as  a  ruling  prec- 
edent became  more  and  more  apparent  as  cases  came 
before  the  impartial  chairman.  Issues  arose  in  four 
distinct  cases  in  which  the  union  took  the  position  that 
"regular"  employees  had  been,  by  the  Board's  decision, 
granted  substantial  permanence  of  employment  and  the 
right  to  retention  during  the  slack  season,  and  that  all 
who  were  primarily  dependent  upon  the  industry  for 
their  earnings  must  be  regarded  as  such  "regular"  em- 
ployees. Another  appeal  was  taken  to  the  Board  of 
Arbitration;  several  sessions  were  held,  and  the  Board 
on  the  5th  of  February,  191 5,  again  reiterated  the  rule 
of  "fair  and  reasonable,"  directed  that  each  question 
should  be  taken  up  as  a  question  of  fact,  and  left  the 
parties  with  no  more  definite  rule  than  it  had  announced 
before.  Later  conferences  of  both  parties  with  the  Board 
were  pending  when  the  crash  came. 

It  is  quite  likely  that  in  the  course  of  time,  by  bringing 
up  case  by  case  as  a  test,  a  code  would  have  been  de- 
veloped, clearly  defining  the  rights  of  the  parties.    But 

158 


THE   TERMINATION  OF   THE   PROTOCOL  159 

the  repeated  litigations,  coupled  with  bad  business 
conditions  generally  and  an  increasing  feehng  on  the 
part  of  the  members  of  the  manufacturers'  association 
that  they  were  being  penalized  and  that  the  industry 
was  being  treated  as  an  experiment  station  for  society 
generally,  instead  of  as  a  business,  resulted  this  tims  in 
the  creation  of  a  strong  anti-Protocol  party  in  the  man- 
ufacturers' group.  Other  causes  contributed.  There 
was  in  existence  another  manufacturers'  association 
with  which  the  union  sought  an  agreement.  This  action 
the  manufacturers  beheved  was  not  in  consonance  with 
the  spirit  of  the  Protocol.  After  the  ist  of  January,  191 5, 
there  was  enough  tinder  in  the  situation  for  a  single 
spark  to  start  a  conflagration. 

On  the  third  of  May  a  stoppage  of  work  occurred  in 
one  of  the  shops  of  the  Association.  (This  was  while 
the  Board  of  Arbitration  was  still  wresthng  with  the 
problem  of  hiring  and  discharge.)  The  usual  complaint 
was  sent  to  the  union  on  that  day  and  repeated  during 
the  following  week.  The  two  Chief  Clerks  ordered  the 
people  back  to  work.  They  returned  to  work  and  a 
second  and  a  third  time  stopped.  Picketing  of  the  shop 
began,  lasted  for  a  week,  and  though  repeated  protest  was 
made  to  the  union,  no  relief  was  accorded.  Later, 
when  the  facts  became  public,  the  counsel  for  the  Inter- 
national Union  accepted  for  his  cHent  frank  responsibility 
for  negligence  in  the  premises,  and  careful  examination 


i6o  LAW  AND  ORDER  IN  INDUSTRY 

then  made  demonstrated  that  the  negligence  was  not 
willful  nor  deliberate.  Several  of  the  officers  of  the  union 
had  been  indicted  by  the  Grand  Jury — (they  were  sub- 
sequently acquitted) — and  the  arrests  following  the 
indictment  took  place  during  the  week  of  the  strike  and 
picketing  in  this  particular  shop.  It  is  probably  the 
fact  that  failure  to  give  to  the  Association  the  redress  to 
which  it  was  entitled  was  due  entirely  to  the  distraction 
of  the  attention  of  the  officers  to  this  other  matter. 

Coming  at  a  time,  however,  when  the  relations  be- 
tween the  parties  were  so  tense,  this  failure  was  the  death 
of  the  Protocol.  On  the  17th  of  May,  the  Association 
wrote  the  union,  reviewing  the  experiences  of  19 13  and 
the  action  of  the  Board  of  Arbitration  at  that  time  *  and 
stated: 

Within  the  past  year,  you  have  questioned  the  right 
of  the  employer  to  select  his  staff,  to  hire  and  discharge 
freely  upon  the  basis  of  efficiency  and  economy,  or  dis- 
charge for  insubordination  in  the  shop. 

The  Association  in  this  letter  stated  that  although  the 
Board  had  decided  that  both  the  power  of  management 
and  administration  of  discipline  within  the  shop  remained 
with  the  employer,  as  it  was  before  the  signing  of  the 
Protocol,  the  original  contentions  were  revived,  "making 
necessary  more  conferences,  more  litigation  and  more 
sessions  of  the  Board  of  Arbitration."    Reviewing  the 

*  See  Chapter  IX. 


THE  TERMINATION  OF  THE  PROTOCOL  i6l 

facts  relating  to  the  shop  strike  and  picketing,  the  Asso- 
ciation said: 

This  flagrant  disregard  officially  of  your  duties  and  our 
rights,  after  repeated  warning,  gives  us  no  alternative, 
except  to  regard  your  present  conduct  as  an  abandon- 
ment of  the  Protocol  and  a  repudiation  of  its  obligations. 
These  matters  have  gone  beyond  the  point  of  endurance. 
We  see  no  sense  in  securing  decisions  of  the  Board  of 
Arbitration  if  these  decisions  are  ignored.  .  .  . 

...  we  fail  to  see  anything  to  be  gained  by  further 
appeals  or  decisions  of  the  Board  of  Arbitration  or  by 
conferences. 

We  deeply  regret  that  after  nearly  five  years  of  effort 
to  join  in  a  cooperative  work  with  you,  we  should  now  be 
obliged  to  come  to  these  conclusions. 

The  imion  replied,  regretting  that  the  Association  had 
"not  seen  fit  to  state  its  position  and  intentions  in  a 
franker  and  more  direct  manner."  It  contested  the 
assertion  of  the  Association  that  the  union  had  "denied 
or  are  denying  the  right  of  the  employer  'to  select  his 
staff,  to  hire  and  discharge  freely  upon  the  basis  of 
efficiency  and  economy,  or  to  discharge  for  insubordina- 
tion in  the  shop. ' "  But  it  contended  that  the  Board  had 
decided  "in  clear  and  unmistakable  language  that  the 
employers'  right  to  discharge  must  be  exercised  in  a  just, 
fair  and  reasonable  manner;  that  any  worker  deeming 
himself  treated  unreasonably  and  unjustly  has  the  right 
to  make  complaint,  and  that  all  grievances  of  discharged 


l62  LAW  AND  ORDER  IN  INDUSTRY 

workers  must  be  investigated  and  adjusted  on  their 
merits."  The  union  in  this  letter  insisted  that  it  was 
not  they  who  questioned  "the  right  of  the  employer  to 
discharge  his  workers  contrary  to  the  decision  of  the 
Board  of  Arbitration,"  but  that  it  was  the  Association 
which  questioned  "the  right  of  a  discharged  worker  to 
complain  against  an  unfair  discharge  in  clear  defiance 
of  the  decision  of  the  Board."  The  union  took  the  posi- 
tion "that  the  workers  are  clearly  entitled  to  a  method 
of  redress  of  their  grievances  based  upon  any  acts  of 
alleged  unfairness  and  injustice  on  the  part  of  the  em- 
ployer in  view  of  the  fact  that  they  are  required  to  sur- 
render their  only  other  instrument  for  the  redress  of 
such  grievances,  the  right  to  strike."  The  union  as- 
serted that  it  was  ready  "to  defend  this  very  reason- 
able position  before  the  Board  and  is  prepared  to  abide 
by  the  decision  of  the  latter."  It  further  stated:  "That 
we  should  hold  different  views  on  the  subjects  of  your 
communication  is  a  position  neither  novel  or  striking. 
Disputes  on  various  points  have  often  arisen  between 
our  respective  organizations,  and  the  agreement  between 
us  provides  for  a  method  of  settlement  of  such  disputes. 
What  is  novel  and  striking  in  your  communication  is 
your  expressed  determination  to  withdraw  the  present 
disputes  from  the  decision  of  the  Board  of  Arbitration 
and  to  take  their  adjustment  into  your  own  hands." 
The  union  concludes  by  saying: 


THE   TERMINATION   OF  THE   PROTOCOL  163 

The  Protocol  gives  each  party  the  right  to  abrogate 
the  instrument  at  will.  We  have  not  chosen  to  exercise 
that  right,  and  we  certainly  cannot  recognize  your 
power  to  exercise  that  right  for  us  and  in  our  behalf. 
If  your  Association  has  decided  to  abrogate  the  Protocol, 
it  must  do  so  in  its  own  behalf,  taking  all  the  respon- 
sibility for  the  act. 

It  then  called  upon  the  Association  definitely  to  state 
whether  or  not  the  communication  meant  that  "your 
Association  has  chosen  to  abrogate  the  Protocol  between 
us."  To  this,  on  the  20th  of  May,  the  Association  re- 
pHed:  "Our  letter  was  intended  to  convey  to  you  in 
simple  language  that  our  mutual,  official  relations  were 
severed  and  severed  by  your  acts."  ".  .  .  we  regard 
further  conferences  with  your  organization  or  sessions 
of  the  Board  of  Arbitration  as  useless.  We  shall  not  ask 
the  gentlemen  of  the  Board  who  have  made  so  many 
sacrifices  to  spend  more  of  their  valuable  time  making 
decisions,  which  you  admit  now  you  cannot  enforce 
upon  your  members,  even  in  so  simple  a  matter  as 
picketing  and  shop  strikes." 

With  the  termination  of  the  Protocol,  aU  of  its  in- 
stitutions fell — the  Board  of  Arbitration,  the  Board  of 
Sanitary  Control,*  the  Board  of  Grievances,  the  Com- 
mittee on  Immediate  Action.  The  union  beHeved  that 
the  termination  of  the  Protocol,  coming  at  the  time  it  did, 

*  This  Board,  notwithstanding,  continued  its  work  in  the  manner 
indicated  in  Chapter  IV. 


i64  LAW  AND  ORDER  IN  INDUSTRY 

was  a  deliberate  attempt  on  the  part  of  the  manufacturers' 
association  to  destroy  the  union.  Subsequent  events 
showed  clearly  that  this  was  not  the  intention  of  the 
manufacturers.  They  had  been  aggravated  beyond 
measure.  All  of  the  efforts  that  had  been  made  to  de- 
velop constructive  legislation  were  blocked  by  the  "dis- 
charge issue"  and  the  unrestrained  shop  strike.  As  a 
matter  of  fact,  the  manufacturers  wanted  to  settle  once 
and  for  all  these  two  fundamental  matters  and  to  secure 
real  peace  through  law  and  order. 

With  the  death  of  the  Protocol,  it  seemed  that  the  in- 
dustry would  relapse  into  the  old  anarchical  conditions 
of  pre-Protocol  days.  The  union  immediately  began 
preparations  for  a  strike.  It  mobilized  its  forces,  held 
great  mass  meetings,  denounced  the  manufacturers,  and 
a  general  strike  similar  to  the  1910  strike  seemed  im- 
minent. During  the  interval  there  was  more  law  and 
order  in  the  shops  than  there  had  been  at  any  one  time 
in  the  previous  five  years.  The  union  demonstrated 
completely  its  power  of  discipline  in  the  hour  of  crisis. 
It  instructed  its  members  to  refrain  from  strike  until 
orders  were  given.  On  the  other  hand,  the  fear  of  whole- 
sale discharges  if  the  employers  were  given  the  right  of 
discharge  without  ready  review  was  found  to  be  unjusti- 
fied. Fewer  people,  in  fact,  were  discharged  at  this 
particular  time  than  at  any  other  time. 

On  the  28th  of  June,  191 5,  the  union  addressed  to  the 


THE  TERMINATION  OF  THE  PROTOCOL  165 

manufacturers'  association  a  communication  which,  after 
reciting  the  pendency  of  various  matters  of  wages  and 
other  issues  before  the  Board  of  Arbitration  and  the  fact 
that  "the  instruments  through  which  our  grievances 
have  been  settled  and  our  mutual  relations  have  been 
regulated  for  the  past  five  years"  have  been  destroyed, 
stated: 

.  .  .  now  our  industry  faces  the  grave  question  as  to 
what  is  to  take  their  place. 

The  situation,  as  we  view  it,  admits  of  but  one  answer: 
Either  the  employers  and  workers  will  get  together  on  a 
fair  and  reasonable  working  agreement  for  at  least  the 
near  future,  or  our  industry  will  find  itself  involved  in 
an  embittered  labor  struggle,  which  may  spell  ruin  for 
many  manufacturers,  and  suffering  and  privation  for 
tens  of  thousands  of  workers  and  many  more  thousands 
of  persons,  directly  or  indirectly  dependent  upon  our 
industry. 

The  workers  fully  reaHze  their  share  of  responsibility 
for  such  a  public  calamity,  and  are  ready  to  make  every 
reasonable  effort  to  avert  it.  But  the  responsibility  rests 
upon  the  manufacturers  as  fully  as  upon  the  workers. 

It  proposed  that,  "In  order  to  secure  a  complete  and 
speedy  adjustment  of  all  disputes  and  to  avoid  any  pro- 
longed and  fruitless  discussions  and  negotiations,  .  .  . 
our  respective  contentions  be  forthwith  submitted  to  a 
Committee  or  Board  of  unbiased  persons  under  the 
presidency  of  Mr.  Louis  D.  Brandeis,  or  Mayor  Mitchel, 


l66  LAW  AND  ORDER  IN  INDUSTRY 

or  any  other  person  of  recognized  standing  in  the  com- 
munity." The  Association  responded,  on  July  second, 
by  saying,  "We  are  willing  to  go  before  a  Council  of 
Conciliation,  to  be  made  up  of  disinterested  and  neutral 
parties,  and  to  lay  our  case  before  them,  with  the  under- 
standing that  arbitrable  questions  may  be  left  to  a 
Board  of  Arbitration,  to  be  subsequently  formed,  if 
necessary."  This  proposition  was  accepted  by  the  union. 
In  offering  to  submit  its  case  to  a  disinterested  tribunal 
the  union  accomplished  a  master  stroke  of  diplomacy.  It 
placed  the  Association  in  a  position  of  apparently  de- 
clining to  accept  the  juridical  method  of  adjustment  of 
difficulties,  after  five  years  of  experience.  The  communi- 
cation of  June  28th,  19 1 5,  by  the  union  to  the  Association, 
is  le  grand  triomphe  of  the  Protocol  experience.  Face 
to  face  with  the  crisis,  with  grave  issues  involved,  the 
union  accepts  as  an  alternative  to  the  strike,  the  decision 
of  a  public  body  and  the  determination  of  public  opinion 
intelligently  exercised,  for  its  guidance.  If  the  Associa- 
tion was  criticised  for  halting  and  for  hedging  about  its 
acceptance  with  reservations  as  to  non-arbitrable  ques- 
tions, it  will  be  recalled  that  there  was  involved  a  funda- 
mental principle,  namely,  the  liberty  of  the  manufacturer 
freely  to  select  the  workers  in  the  estabhshment.  This, 
to  the  manufacturers,  seemed  so  vital  that  it  fell  within 
the  scope  of  non-arbitrable  matters. 
To  select  such  a  Council  presented  immediately  a 


THE  TERMINATION  OF  THE  PROTOCOL  167 

task  for  both  parties,  and  though  relations  between 
the  two  had  been  broken  by  the  termination  of  the  Pro- 
tocol, they  were  resumed  for  the  purpose  of  agreeing 
upon  the  method  of  bringing  the  Council  of  Conciliation 
into  being. 


CHAPTER  XV 

THE  mayor's  council  OF  CONCILIATION 

The  plan  promptly  assented  to  by  both  parties  pro- 
vided for  the  creation  of  a  Council  of  six,  to  be  appointed 
by  the  Mayor  of  the  city.  This  plan  was  approved  by 
the  Mayor  and  he  immediately  appointed  as  the  members 
of  the  Council  the  leader  of  the  Society  for  Ethical  Cul- 
ture, a  former  judge  of  the  United  States  Circuit  Court 
of  Appeals,  a  former  dean  of  the  Columbia  Law  School, 
the  City  Chamberlain,  the  former  head  of  the  Board 
of  Arbitration,  and  the  chairman  of  the  Committee 
on  Arbitration  of  the  Chamber  of  Commerce.*  The 
Council  held  twenty-one  sessions,  public  and  executive. 
The  opening  words  of  its  chairman  are  significant:  "... 
the  appointment  of  this  Mayor's  Committee  is  an  event 
of  some  importance  in  the  history  of  New  York.  .  .  . 
twenty  years  ago  a  Mayor  of  New  York  would  not  have 
appointed  a  committee  to  assist  the  two  parties  in  the 
removing  of  the  causes  of  industrial  friction.  The  fact 
that  your  Chief  Executive  ofl&cer  deems  it  a  part  of  his 

*  Felix  Adler,  Walter  C.  Noyes,  George  W.  Kirchwey,  Henry  Bruere, 
Louis  D.  Brandeis,  Charles  L.  Bemheimer.  Dr.  Adler  was  chosen  as 
chairman. 

i68 


THE  MAYOR'S   COUNCIL  OF  CONCILIATION        169 

official  duty  to  call  upon  a  number  of  citizens  for  the 
purpose  of  tendering  their  friendly  offices  in  this  fashion 
indicates  the  new  social  note  that  is  being  struck  in  our 
politics.  ..."  In  this  address,  the  chairman  described 
the  functions  of  the  Council.  He  said:  " .  .  .we  are  not 
here  to  arbitrate;  we  are  not  here  to  decide.  We  are  here 
on  the  part  of  the  City,  representing  the  community,  to 
tender  our  friendly  offices  with  a  view  to  industrial  peace. 
And  .  .  .  with  a  view  to  industrial  progress.  Yet,  de- 
spite the  fact  that  our  function  is  purely  that  of  sugges- 
tion and  advice,  there  is  a  certain  invisible  authority 
lodged  in  this  volunteer  body;  it  represents  a  certain 
pressure,  though  it  does  not  represent  and  is  not  equipped 
with  coercive  power.  It  is  this  distinction  between 
power  and  pressure;  and  in  this  Committee,  in  a  way, 
is  lodged  a  certain  pressure;  that  is,  the  pressure  of  the 
whole  upon  the  part,  the  pressure  of  the  whole  City  upon 
a  certain  fraction  of  citizenship  of  this  town,  the  press- 
ure of  a  community  that  seeks  peace  and  welfare  upon 
that  portion  of  the  community  in  which  peace  and  wel- 
fare are  for  the  moment  endangered.  It  is  the  pressure 
of  the  forces  of  integration  in  a  community  upon  a  point 
where  disintegration  is  about  to  or  possibly  may  set  in." 
Let  us  stop  for  a  moment  to  consider  the  significance  of 
this  thought.  The  old  Board  of  Arbitration  derived  its 
powers  from  "the  consent  of  the  governed,"  that  is, 
the  employers'  association  and  the  union.    It  had  no 


lyo  LAW  AND  ORDER  IN  INDUSTRY 

power  of  enforcing  its  decisions  or  judgments.  When 
either  party  terminated  the  Protocol,  the  Board  of  Ar- 
bitration fell.  If,  in  January,  19 14,  it  found  great  efficacy 
in  a  mere  recommendation  to  one  of  the  parties,  it  was 
because  at  the  moment  of  crisis  the  Board  was  environed 
by  an  aroused  and  informed  public  opinion.  Unlike  the 
Board,  the  Mayor's  Council,  though  created  upon  the 
initiative  of  the  parties  in  interest,  owed  them  after  its 
creation  no  duty  whatsoever,  save  to  render  accurate, 
intelligent  judgment  and  to  employ  such  tact  and  con- 
sideration as  would  result  in  bringing  about  a  new  treaty 
of  peace.  On  the  other  hand,  it  owed  to  the  community 
a  weightier  duty — the  duty  to  prevent  strife,  to  find 
firmer  solutions  for  existing  issues  and  to  create  a  better 
base  for  future  relations.  It  brought  to  this  task  *'the 
pressure  of  the  entire  community  upon  a  part."  The 
estabhshment  of  the  Mayor's  Council  marks  a  real 
step  forward  in  the  invention  of  machinery  for  the  solu- 
tion of  industrial  controversies.  It  represents  the  intelli- 
gently organized  power  of  the  community  applied  to  the 
rational  solution  of  an  industrial  crisis.  It  is  public 
opinion  based  upon  knowledge,  ascertaining  the  facts, 
arriving  at  conclusions,  and  stating  them  in  the  name 
of  the  entire  community. 

After  it  had  rendered  its  findings,  the  New  York 
Times,  editorially  commenting  upon  the  work  of  the 
Council,  said: 


THE  MAYOR'S   COUNCIL  OF  CONCILIATION        171 

Neither  side  can  get  on  without  the  support  of  public 
opinion,  and  that  will  go  to  the  side  which  comports 
itself  most  nearly  in  accord  with  the  Council.  The 
Protocol  had  its  faults  but  it  kept  a  sort  of  armed  peace 
for  five  years.  The  new  treaty  possibly  will  surpass  it, 
not  only  in  endurance  under  stress,  but  perhaps  in  pro- 
ducing better  relations  than  those  of  avowed  hostility.* 

The  Evening  Post  said: 

The  city  now  has  a  permanent  board  of  arbitration  for 
all  disputes  between  the  Cloak  Manufacturers'  Associa- 
tion and  the  needle- workers'  unions.  This  points  to  the 
passing  of  the  stage  in  which  the  public  is  a  suppliant 
for  peace,  and  to  the  acceptance  by  the  disputants  of  the 
authority  of  the  pubUc  to  forbid  war  and  to  impose,  in 
an  impartial  spirit,  new  terms  of  cooperation.f 

May  we  not  say,  as  the  executive  head  of  the  manu- 
facturers' association  said,  upon  the  announcement  of 
the  creation  of  the  Council:  "This  is  a  better  way  of 
getting  at  the  truth  than  a  costly  strike,  which  gets 
nowhere  and  settles  nothing,  and  brings  only  violence 
and  hatred  in  its  train."  | 

The  first  task  to  which  the  Council  addressed  itself, 
after  giving  both  sides  ample  opportunity  to  present 
their  claims  and  contentions  was  to  settle  the  issues  which 
were  still  pending  before  the  Board  of  Arbitration.    The 

*  New  York  Times,  August  7,  1915. 
\  Eve7iing  Post,  August  5,  1915. 
%  New  York  Times,  July  10,  1915. 


172  LAW  AND   ORDER  IN  INDUSTRY 

Council  obtained  this  result  by  clearly  formulating  its 
own  opinion,  disregarding  every  statement  that  had  gone 
before.  The  fundamental  rule  was  thus  stated  by  the 
Council: 

.  .  .  the  principle  of  industrial  efficiency  and  that  of 
respect  for  the  essential  human  rights  of  the  workers 
should  always  be  appHed  jointly,  priority  being  assigned 
to  neither.  Industrial  efficiency  may  not  be  sacrificed 
to  the  interests  of  the  workers,  for  how  can  it  be  to  their 
interest  to  destroy  the  business  on  which  they  depend 
for  a  living,  nor  may  efficiency  be  declared  paramount  to 
the  human  rights  of  the  workers;  for  how  in  the  long  run 
can  the  industrial  efficiency  of  a  country  be  maintained 
if  the  human  values  of  its  workers  are  diminished  or 
destroyed.  The  delicate  adjustment  required  to  recon- 
cile the  two  principles  named  must  be  made.  Peace 
and  progress  depend  upon  complete  loyalty  in  the  effort 
to  reconcile  them.* 

Appljdng  this  fundamental  rule,  the  Council  laid  out  a 
definite  application  of  rights  and  obligations  in  the 
relationship  between  employers  and  workers.  With 
reference  to  the  freedom  of  the  employer  to  make  se- 
lection of  workers,  to  hire  and  discharge,  the  Council 
laid  down: 

I.  Under  the  present  competitive  system,  the  principle 
of  industrial  efficiency  requires  that  the  employer  shall 

*  Findings  and  Recommendations  of  the  Council  of  Conciliation, 
handed  down  July  23,  1915,  and  accepted  by  union  and  Association, 
August  4>  1915- 


THE   MAYOR'S   COUNCIL  OF   CONCILIATION        173 

be  free  and  unhampered  in  the  performance  of  the 
administrative  functions  which  belong  to  him,  and  this 
must  be  taken  to  include: 

(a)  That  he  is  entirely  free  to  select  his  employees  at 
his  discretion. 

(b)  That  he  is  free  to  discharge  the  incompetent,  the 
insubordinate,  the  inefficient,  those  unsuited  to  the  shop 
or  those  unfaithful  to  their  obligations. 

(c)  That  he  is  free  in  good  faith  to  reorganize  his  shop 
whenever  in  his  judgment,  the  conditions  of  business 
should  make  it  necessary  for  him  to  do  so. 

(d)  That  he  is  free  to  assign  work  requiring  a  superior 
or  special  kind  of  skill  to  those  employees  who  possess 
the  requisite  skill. 

With  regard  to  the  equal  distribution  of  work  and  the 
"right  to  the  job,"  the  Council  declared: 

(e)  That  while  it  is  the  dictate  of  common  sense,  as 
well  as  common  humanity,  in  the  slack  season  to  dis- 
tribute work  as  far  as  possible  equally  among  wage 
earners  of  the  same  level  and  character  of  skill,  this 
practice  cannot  be  held  to  imply  the  right  to  a  permanent 
tenure  of  employment,  either  in  a  given  shop  or  even  in 
the  industry  as  a  whole.  A  clear  distinction  must  be 
drawn  between  an  ideal  aim  and  a  present  right. 

The  Council  was  not  forgetful  of  the  legitimate  desire 
for  security  of  tenure  nor  of  the  prime  need  for  better 
regulation  of  employment  in  the  industry,  but  it  said: 
"A  clear  distinction  must  be  drawn  between  an  ideal 
aim  and  a  present  right"  and  explained: 


174  LAW  AND   ORDER   IN  INDUSTRY 

The  constant  fluctuations — the  alternate  expansions 
and  contractions  to  which  the  cloak-making  industry  is 
so  peculiarly  subject,  and  its  highly  competitive  char- 
acter, enforce  this  distinction.  But  an  ideal  aim  is  not, 
therefore,  to  be  stigmatized  as  Utopian,  nor  does  it 
exclude  substantial  approximations  to  it  in  the  near 
future.  Such  approximations  are  within  the  scope  of 
achievement,  by  means  of  earnest  efforts  to  regularize 
employment  and  by  such  increase  of  wages  as  will  secure 
an  average  adequate  for  the  maintenance  of  a  decent 
standard  of  living  throughout  the  year. 

And  it  clinched  the  thought  with  this  firm  statement: 

The  attempt,  however,  to  impose  the  ideal  of  a  per- 
manent tenure  of  employment  upon  the  cloak-making 
industry  in  its  present  transitional  stage  is  impracticable, 
calculated  to  produce  needless  irritation  and  injurious 
to  all  concerned.* 

When  we  lay  the  findings  of  the  Mayor's  Council 
side  by  side  with  the  findings  of  the  Board  of  Arbitra- 
tion (Appendix  C),  it  will  be  seen  that  what  is  "fair  and 
reasonable"  is  no  longer  in  doubt.  With  all  due  regard 
for  the  legitimate  aim  towards  greater  security  of  tenure, 
the  status  and  "permanent  right  to  the  job"  theory  is 
blasted  by  clear  analysis  and  statement  of  the  situation 
of  both  parties.  The  need  for  efficiency  in  the  industry 
is  emphasized,  though  efficiency  is  not  to  be  forwarded 

*  The  full  text  of  the  Findings  and  Recommendations  will  be  found 
in  Appendix  D. 


THE   MAYOR'S   COUNCIL  OF  CONCILIATION        175 

at  the  expense  of  "the  essential  human  rights  of  the 
worker" — which  are  defined.  The  freedom  of  the  em- 
ployer to  decide,  the  recognition  of  his  administrative 
function  under  the  existing  order  of  industry,  is  stated 
clearly  and  beyond  misconstruction.  In  spirit  and  in 
fundamental  purpose,  the  Board  of  Arbitration  and  the 
Council  were  in  complete  harmony.  On  the  other  hand, 
like  many  decisions  of  the  courts,  the  decision  of  the 
Board  of  Arbitration  required  modification  of  statement 
and  clarification.  The  Mayor's  Council,  in  a  sense,  an 
appellate  tribunal,  with  power  to  affirm,  reverse  or 
modify,  did  (without  saying  so)  materially  modify  and 
clarify  the  statement  of  the  rule  by  the  Board  of  Arbi- 
tration. It  may  not  be  far  wrong  even  now  to  say  that  it 
required  the  intervening  period  of  time  and  the  crisis 
itself  to  bring  about  such  clarification  of  thought  and 
statement. 

So  was  a  great  industrial  conflict  disposed  of — not 
by  force,  not  by  compromise  of  principle,  but  in  a  forum 
of  the  parties'  own  making,  by  clear  declaration  of  prin- 
ciple, so  clear  that  its  own  inherent  soundness  compelled 
acceptance  from  both  sides. 

Not  only  did  the  union  accept  the  findings  of  the 
Mayor's  Council  as  applied  to  the  cloak  situation  in 
New  York,  but  a  few  months  later  made  them  the  basis 
of  Protocol  agreements  in  Boston  and  Chicago.*     It 

*  See  the  issues  of  Women's  Wear  for  September  22  and  27,  1915. 


176  LAW  AND  ORDER  IN  INDUSTRY 

is  not  too  soon  to  say  that  the  principles  laid  down  by 
the  Mayor's  Council  are  as  certain  to  become  a  general 
modus  Vivendi  in  industry  as  the  preferential  union  shop. 
By  destroying  the  status  theory,  the  mere  act  of  dis- 
charge is  no  longer  basis  for  litigation,  and,  in  conse- 
quence, the  discharge  issue,  like  the  closed  shop,  should 
no  longer  stand  as  a  stumbling  block  in  the  way  of  better 
relations  between  the  parties.  They  can  now  turn  their 
attention  once  again  to  their  joint  problems — the  prob- 
lems of  enforcement  of  standards,  the  repression  of  the 
shop  strike,  the  solution  of  the  piece  price  dilemma,  and 
the  better  regularization  of  employment.  But  note  this: 
The  final  result,  so  valuable  to  all  parties  concerned,  could 
not  have  been  accomplished  by  mutual  agreement.  It 
required  judgment,  impartial  judgment,  by  a  tribunal 
in  which  both  sides  had  confidence  and  before  which 
each  side  might  have  a  full  and  complete  hearing.  Before 
such  a  tribunal  there  could  be  battle,  not  the  battle  of 
war,  but  the  battle  of  ideas.  The  prime  lesson  of  the 
19 1 5  experience  is  that  great  conflict  over  vital  principles 
will  arise  even  under  joint  agreements.  Such  conflicts 
cannot  he  settled  by  force.  Neither  the  strike  nor  the  lock- 
out will  help.  They  cannot  he  settled  hy  courts  of  law; 
courts  of  law  are  not  constituted  to  take  care  of  them.  They 
cannot  he  settled — indeed,  should  not  he  settled — hy  com- 
promise. They  must  he  heaten  out  in  a  forum  of  reason. 
If  such  a  forum  does  not  exist,  it  must  be  created.    And 


THE  MAYOR'S   COUNCIL  OF   CONCILIATION        177 

even  though  it  exist,  errors  of  judgment,  like  errors  of  courts, 
must  be  expected.  Such  errors  will  require  correction, 
modification,  or  even  reversal.  Through  error,  progress  will 
be  made.  The  rule  for  the  forum,  like  the  rule  for  the  judge, 
would  seem  to  be:  "Hew  to  the  line;  let  the  chips  fall  where 
they  may." 


CHAPTER  XVI 

THE  NEW  TRIAL  BOARD 

In  the  16,000  or  17,000  cases  that  went  through  the 
machinery  of  the  Protocol,  no  effort  had  ever  been  made 
to  introduce  any  kind  of  formalism.  When  the  rules  for 
the  Board  of  Grievances  (Appendix  B)  were  adopted, 
none  of  the  lawyers  attempted  to  apply  the  formality 
of  legal  procedure.  In  consequence,  the  complaints 
from  one  side  to  the  other  were  in  the  simplest  form. 
When  the  discharge  issue  came  to  be  serious,  it  was 
found  that  this  looseness  of  practice  resulted  in  the 
filing  of  complaints  containing  no  other  statement  than 
that  So-and-So  had  been  unjustifiably  discharged,  or 
that  So-and-So  had  been  unjustly  discriminated  against, 
and  requesting  an  investigation.  Upon  such  a  bare 
conclusion,  the  clerks  would  go  out  to  the  shop,  investi- 
gate, and,  in  case  of  their  disagreement,  the  Committee 
on  Immediate  Action  would  take  charge.  The  study 
made  by  the  Department  of  Labor  of  the  workings  of  the 
Board  of  Grievances  *  developed  that  a  vast  number 
of  discharge  cases  was  brought  without  any  real  founda- 

*  See  Bulletins  98  and  144,  Bureau  of  Labor  Statistics,  U.  S.  Depart- 
ment of  Labor. 

178 


THE   NEW  TRIAL  BOARD  179 

tion.  The  records  submitted  to  the  Board  of  Arbitra- 
tion in  1914  showed  that  of  11,893  cases  during  the 
years  1911,  1912,  1913  and  1914,  but  142  "discharge" 
cases  went  to  adjudication,  all  the  rest  being  either 
withdrawn,  dropped  or  adjusted  through  the  good 
offices  of  the  clerks.  In  191 1,  5%  of  the  "discharge" 
cases  were  withdrawn,  54%  were  dropped,  26%  were 
adjusted.  In  1912,  12%  were  withdrawn,  48%  were 
dropped,  36%  were  adjusted.  In  19 13,  23%  of  the  cases 
were  dropped,  19%  were  withdrawn,  and  45%  were 
adjusted.  In  1914,  22%  were  dropped,  18%  were  with- 
drawn, and  only  54%  were  adjusted.  These  figures 
suflSciently  indicate  the  very  substantial  mass  of  com- 
plaints either  dropped  or  withdrawn.  When  the  Mayor's 
Council  came  to  consider  this  problem,  it  made  the  follow- 
ing application  of  its  fundamental  rule  to  the  rights  of 
the  workers: 

(a)  .  .  .  the  workers  have  an  inalienable  right  to 
associate  and  organize  themselves  for  the  purpose  of 
maintaining  the  highest  feasible  standard  as  to  wages, 
hours  and  conditions,  and  of  still  further  raising  the 
standards  already  reached. 

(&)...  no  employee  shall  be  discharged  or  dis- 
criminated against  on  the  ground  that  he  is  participating 
directly  or  indirectly  in  union  activities. 

(c)  .  .  .  the  employees  shall  be  duly  safeguarded 
against  oppressive  exercise  by  the  employer  of  his  func- 
tions in  connection  with  discharge  and  in  all  other 
dealings  with  the  workers.    It  is  to  be  carefully  noted 


l8o  LAW  AND  ORDER  IN  INDUSTRY 

that  the  phrase  "oppressive  exercise  of  functions"  need 
not  imply  a  reflection  on  the  character  and  intentions  of 
the  high-minded  employer. 

And  the  Council  said,  "A  tribunal  of  some  kind  is  neces- 
sary, in  case  either  of  the  parties  to  this  covenant  be- 
lieves itself  to  be  unjustly  aggrieved,"  but  "the  con- 
struction of  such  a  tribunal  is  a  delicate  and  difficult 
task,  demanding  the  greatest  care,  lest  on  the  one  hand 
the  movements  of  industry  be  clogged  by  excessive  litiga- 
tion, and  lest  on  the  other  hand  the  door  of  redress  be 
closed  against  even  the  most  real  and  justified  com- 
plaint."   It  therefore  recommended  that: 

(a)  Every  complaint  from  either  organization  to  the 
other  shall  be  in  writing,  and  shall  specify  tJie  facts  which, 
in  the  opinion  of  the  complaining  organization,  constitute 
the  alleged  grievance,  and  warrant  its  presentation  by  one 
organization  to  the  other.  Such  complaints  shall  be 
investigated  in  the  first  instance  by  the  representatives 
of  the  two  associations,  chosen  for  the  purpose,  it  being 
impressed  upon  them  that  they  use  and  exhaust  every 
legitimate  effort  to  bring  about  an  adjustment  in  an 
informal  manner.  In  case,  however,  an  adjustment  by 
them  be  not  reached,  the  matters  in  dispute  shall  be 
referred  for  final  decision  to  a 

{h)  Trial  Board  of  three,  consisting  of  one  employer, 
one  worker  and  one  impartial  person,  the  latter  to  be 
selected  by  both  organizations,  to  serve  at  joint  expense 
and  to  be  a  standing  member  in  all  cases  brought  before 
the  Board.  The  remaining  two  members  shall  be  se- 
lected as  follows: 


THE  NEW  TRIAL  BOARD  l8l 

The  Association  and  the  Union  shall  each  make  up  a 
list  of  ten  persons,  to  be  approved  by  the  other.  From 
these  two  lists,  as  each  case  arises,  each  party  shall  select 
one  person. 

In  establishing  the  rule  that  the  complaint  should  specify 
the  facts  which  constitute  the  alleged  grievance,  the 
Council  was  borrowing  from  the  lessons  of  judicature. 
It  is  the  experience  of  all  courts  that  where  the  doors 
of  the  tribunal  are  always  open,  litigation  multiplies 
beyond  all  reason.  Without  in  any  sense  being  technical 
or  too  formal,  there  would  seem  to  be  no  reason  why 
any  complainant  should  not  be  required  to  set  forth, 
at  the  time  of  the  assertion  of  the  grievance,  the  facts 
upon  which  he  rests  his  claim.  This  simple  rule  must  un- 
doubtedly eliminate  a  very  large  mass  of  the  litigation 
that  existed  under  the  old  system.  Another  change 
of  procedure  took  place.  The  Committee  on  Immediate 
Action  (as  was  pointed  out  in  Chapter  X)  consisted  of 
two  partisans  and  one  non-partisan,  the  non-partisan 
being  neither  a  manufacturer  nor  a  worker.  The  prob- 
lems coming  before  such  a  tribunal  are  shop  problems, 
requiring  the  technical  knowledge  possessed  only  by  a 
manufacturer  or  a  workman.  In  recommending  that 
the  trial  board  itself  should  be  made  up  of  three,  of  whom 
one  should  be  an  employer  and  one  should  be  a  worker, 
the  Council  undoubtedly  took  a  step  forward.  By  so 
doing,  it  left  the  Chief  Clerks  as  advocates  to  fight  out 


l82  LAW  AND  ORDER  IN  INDUSTRY 

their  respective  claims  before  the  tribunal  and  brought 
into  each  situation  the  technical  shop  knowledge  of  the 
employer  and  worker,  at  the  same  time  putting  all 
three  of  the  members  of  the  board,  upon  their  honor  as 
judges. 

Another  change: — The  impartial  chairman  of  the 
old  Committee  on  Immediate  Action  had  been  retained 
at  an  annual  salary.  When  this  procedural  change  was 
carried  over  into  the  dress  and  waist  industry  in  New 
York  in  1914,  the  employers'  association  and  the  local 
union  in  that  industry  agreed  that  the  impartial  chair- 
man should  be  employed  hy  the  case  at  a  fixed  stipend, 
each  side  to  pay  half.  This  expense  item  in  the  adminis- 
tration of  the  law  had  the  beneficent  efifect  of  forcing 
the  clerks  to  agree  diplomatically  and  thus  avoided 
useless  litigation.  Influenced  by  this  experience,  when, 
after  the  acceptance  of  the  recommendations  of  the 
Mayor's  Council,  the  list  of  impartial  men  was  made  up, 
both  employers'  association  and  union  agreed  in  the 
cloak  industry  that  there,  too,  payment  should  be 
made  according  to  the  service  rendered  in  each  case. 
This  should  have  the  effect  of  preventing  useless  Uti- 
gation. 

It  is  yet  too  soon  to  draw  any  deductions  covering  the 
relative  efficiency  of  the  new  method  of  procedure  over 
the  methods  of  the  old  Committee  on  Immediate  Action. 
Since  the  acceptance  of  the  recommendations  of  the 


THE   NEW  TRIAL   BOARD  183 

Council,  the  new  machinery  has  been  tried  in  several 
cases  coming  up  before  trial  boards,*  In  the  shop  of 
Charles  Lavine  &  Co.,  it  appeared  that  it  became  nec- 
essary for  the  employer  to  curtail  the  number  of  people 
in  one  of  his  departments,  and  accordingly  five  operators 
were  discharged.  The  union  immediately  filed  a  com- 
plaint, charging  that  four  operators  had  been  discrimi- 
nated against  for  union  activity.  One  was  a  former 
shop  chairman,  another  was  a  member  of  the  price  com- 
mittee, while  a  third  was  then  a  member  of  the  execu- 
tive board  of  the  union.  After  hearing  the  evidence  of 
both  sides,  the  chairman  of  the  trial  board  f  rendered 
the  following  decision  for  that  body: 

In  the  matter  of  the  complaint  against  the  firm  of 
Charles  Lavine  &  Co.,  of  126  West  2 2d  street,  for  dis- 
charging operators  Boxer,  Gopen,  Lorber  and  Kaplan, 
all  active  members  of  the  price  committee  and  former 
shop  chairman,  claiming  that  they  intend  to  curtail  their 
factory,  while  the  remainder  of  the  employees  such  as 
finishers,  pressers  and  cutters,  have  not  been  approached 
in  this  regard,  wherein  it  is  charged  that  the  action  of  this 
firm  is  one  of  discrimination  against  the  above  mentioned 
people  for  union  activity,  I  beg  to  say  that,  after  a  full 
hearing  of  the  case,  I  have  come  to  the  conclusion  that 
the  discharge  of  these  four  operators  was  legitimately  for 

*  International  Cloak  Co.  case — Women's  Wear,  September  15,  1915; 
Prakin  &  Lebofsky  case — Women's  Wear,  September  16,  1915;  Charles 
Lavine  &  Co.  case — Women's  Wear,  October  11,  1915. 

t  Cyrus  L.  Sulzberger,  chairman;  William  Dann  for  employers,  and 
J.  Sepin  for  workers. 


i84  LAW  AND  ORDER  IN  INDUSTRY 

the  purpose  of  reorganizing  the  factory  and  that  no  dis- 
crimination for  union  activity  has  been  shown. 

These  cases  would  seem  to  indicate  that  the  rule  in 
cases  of  discrimination  and  discharge  was  stated  by  the 
Council  with  sufficient  clarity  and  definiteness  to  reduce 
the  issues  for  trial  boards  to  simple  questions  of  fact. 
The  Lavine  case  is  significant,  for  in  that  case  the  dis- 
charged employees  occupied  official  positions  as  repre- 
sentatives of  the  union,  and  this  was  not  taken  as  con- 
clusive evidence  of  intention  to  discharge  for  "union 
activity,"  but  considered  together  with  all  the  other 
facts  in  the  case.  Undoubtedly,  the  ruling  by  the  Council 
upon  the  fundamental  issue  that  had  disturbed  the  re- 
lations of  the  parties  for  nearly  five  years  will  of  itself 
relieve  the  strain  and  make  unnecessary  much  of  the 
complex  machinery  of  the  Protocol.  Indeed,  when  the 
union  in  its  communication  of  June  28th  suggested  a  new 
agreement,  it  said:  "We  do  not  desire  to  revive  the  Pro- 
tocol with  its  intricate  machinery."  The  experiences 
of  the  parties  leading  up  to  the  termination  of  the  Pro- 
tocol convinced  both  that  the  machinery  for  redressing 
grievances  was  too  free  of  access.  If  we  turn  back  these 
pages  to  the  consideration  of  the  19 13  experience,  we 
will  find  that  at  that  time  the  union  was  torn  with  con- 
flict over  belief  that  the  machinery  was  inadequate  to 
redress  grievances.  Thus  we  do  learn  our  lessons  by 
bitter  experience  only.    In  19 13  the  leaders  of  the  union 


THE   NEW   TRIAL   BOARD  185 

were  ready  to  destroy  the  Protocol  because  of  the  inade- 
quacy of  the  machinery  to  redress  grievances.  In  1915 
they  would  simplify  procedure  in  order  to  revive  the 
Protocol.  The  explanation,  of  course,  is  that  there  is  no 
way  of  determining  whether  machinery  of  this  character 
is  either  adequate  or  inadequate,  except  by  actual  ex- 
perimentation. We  "  learn  by  doing."  One  lesson  has 
been  learned:  Too  much  opportunity  for  litigation  is 
quite  as  bad  as  not  enough. 


CHAPTER  XVII 

THE  REVIVAL  OF  THE  PROTOCOL 

When  the  Mayor's  Council  first  called  the  parties 
into  executive  session,  the  chairman  asked:  Can  we  not 
secure  your  immediate  assent  to  the  continuance  of  the 
Joint  Board  of  Sanitary  Control?  Both  sides  answered, 
Yes.  Thus  the  work  of  the  Board,  described  in  Chap- 
ter IV,  was  continued — certainly  a  high  tribute  to  its 
management.  Then  the  Council  took  up  tentatively  the 
various  provisions  of  the  Protocol,*  and  found,  if  the  "dis- 
charge" issue  were  disposed  of  satisfactorily,  Articles  I, 
II,  III,  IV,  V,  VI,  VII,  VIII,  IX,  X,  XI,  XII,  XIII, 
XIV  and  XV  could  again  be  made  acceptable  to  both 
parties.  In  consequence,  the  Council  first  took  up  this 
issue,  then  considered  the  questions  relating  to  unmediate 
increases  of  wages  and  establishment  of  standard  rates 
per  hour  for  piece  workers,  and  thereafter  made  recom- 
mendations upon  these  branches  of  the  subject.f  It  also 
recommended  that  the  parties  submit  to  the  arbitra- 
ment of  the  Council  two  questions,  one  involving  over- 

*  See  Appendix  A. 
t  See  VI,  Appendix  D. 

i86 


THE  REVIVAL  OF  THE  PROTOCOL  187 

time  work  on  Saturday  and  the  other  the  number  of 
legal  holidays  to  be  observed  in  the  industry. 

Thus,  with  the  disposition  of  the  "discharge"  issue, 
the  revision  in  machinery  for  redressing  grievances,  the 
advance  in  wages  and  the  matters  reserved  for  arbitra- 
tion, the  old  Protocol  was  revived — save  in  two  further 
important  respects.  First,  the  new  agreement  was 
tentative  and  for  a  definite  time.  It  was  to  continue 
''for  the  period  of  two  years"  from  the  date  of  the 
recommendations  and  "thereafter  for  like  periods  of 
two  years,  unless  terminated  by  either  party  on  two 
months'  notice,"  with  provision  for  modifications  to  be 
presented  at  least  two  months  before  the  termination 
of  any  period. 

Next,  in  making  these  recommendations  as  to  wages 
and  machinery,  the  Council  frankly  admitted  its  own 
inabihty  within  the  time  at  its  disposal  to  grapple  fully 
with  the  problems  presented  to  it.  Therefore,  in  addi- 
tion to  securing  the  assent  of  both  parties  to  the  re- 
establishment  of  the  Board  of  Sanitary  Control,  at 
the  very  outset  it  secured  also  their  assent  to  the  con- 
tinuance of  the  Council  as  a  Commission  for  the  purpose 
of  "investigating  thoroughly  the  fundamental  problems 
of  regularization,  standards  of  wages  and  enforcement  of 
standards  throughout  the  industry,  of  trade  education, 
of  a  more  thorough  organization  of  the  industry;  and 
on  the  basis  of  such  investigation  to  submit  a  construe- 


l88  LAW  AND  ORDER  IN  INDUSTRY 

tive  policy  to  both  organizations."  This  assent  of  both 
parties  was  subsequently  ratified  by  formal  appoint- 
ment by  the  Mayor.  In  its  recommendations,  it  will 
be  noted  that  the  Council,  referring  to  its  continuance  in 
existence  for  study  and  constructive  recommendations, 
said:  "...  the  Council  .  .  .  will  be  available  when- 
ever the  parties  desire  to  consult  with  it,  and  if  either 
organization  feels  aggrieved  against  the  other,  such 
organization  may  address  the  Council  upon  the  subject, 
and  the  Council  will  do  the  best  it  can  to  assist."  Ques- 
tions of  interpretation  did  arise  even  before  both  parties 
accepted  the  recommendations,  and  the  manufacturers 
asked  the  Council  to  make  supplementary  interpreta- 
tions before  filing  their  acceptance.  This  the  Council 
decUned  to  do,  stating  that  in  its  opinion  its  recom- 
mendations were  sufficiently  clear,  and  unofi&cial  inter- 
pretations need  not  be  considered.  It  did  say,  however, 
that  if  the  recommendations  were  accepted,  it  would 
hold  itself  in  readiness  to  interpret  any  of  the  provisions 
of  the  recommendations  at  any  time  actual  controversy 
arose. 

When  both  parties  accepted  the  recommendations  in 
toto,  the  old  Protocol  provisions  enumerated  were  re- 
vived, the  Council  of  Conciliation  became  the  new  Board 
of  Arbitration,  and  besides  became  the  impartial  com- 
mission to  aid  both  parties  in  the  rational  study  and 
solution  of  their  joint  problems.    In  securing  a  body  of 


THE   REVIVAL  OF  THE  PROTOCOL  189 

men  as  arbitrators  not  one  of  whom  was  under  obliga- 
tion to  either  of  the  parties  because  of  his  selection, 
thus  backed  by  the  appointment  of  the  Mayor  and  public 
opinion,  we  must  admit  that  a  change  took  place  in  the 
direction  of  industrial  progress  in  this  industry.  In 
securing  the  aid  of  impartial  and  outside  study  for  the 
better  solution  of  the  problems  affecting  the  industry, 
the  parties  surrendered  in  exchange  some  part  of  their 
independence  as  organizations.  The  old  Protocol  was 
called  "perpetual"  because  it  had  no  definite  time  limit. 
It  was  less  perpetual  than  the  newer  document,  for  it 
could  be  terminated  at  any  time.  Every  two  years  the 
new  document  is  subject  to  revision,  and  it  may  be  ex- 
pected that  controversy  will  be  left  to  accumulate  for 
such  occasions  and  possibly  make  for  serious  friction 
again.  On  the  other  hand,  under  the  old  agreement  there 
might  be  controversy  at  any  time.  Whether  or  not  this 
change  is  to  the  advantage  of  either  party  or  both  re- 
mains to  be  seen;  but  it  is  not  too  optimistic  to  believe 
that  the  issues  which  tore  up  the  industry  and  the  Pro- 
tocol having  been  disposed  of,  attention  will  be  con- 
centrated from  now  on  upon  the  constructive  legis- 
lation required  for  the  upbuilding  of  the  industry  as  a 
whole.  If  both  join  in  such  a  work  with  the  aid  of  the 
Mayor's  Coimcil  (now  Commission),  they  should  lose 
something  of  the  old  feeling  of  antagonism — at  least 
until  some  new  large  issue  comes  to  the  surface.    Of 


igo  LAW  AND  ORDER  IN  INDUSTRY 

one  thing  we  can  be  certain.  The  precedent  of  sub- 
mitting in  the  hour  of  crisis  to  an  impartial  tribunal 
appointed  by  the  Mayor  and  backed  by  public  opinion 
the  most  vital  conflict  of  principles  that  could  arise  in 
industry  will  never  be  forgotten. 


CHAPTER  XVIII 


INFERENCES 


The  two  assumptions  made  at  the  end  of  Chap- 
ter VII  would  seem  to  be  fully  established: 

1.  Given  institutions  for  preserving  law  and  order  in  in- 
dustry and  for  improving  the  welfare  of  the  industry,  the 
enterprise  will  prove  valuable  to  employer  and  worker  alike, 
provided  it  is  carried  out  in  a  spirit  of  mutual  helpfulness 
and  with  a  recognition  of  the  business  factors  in  the  joint 
problem.  Given  leaders  on  both  sides  who  trust  each  other, 
the  underlying  spirit  of  the  institutions  will  find  expression 
in  day  to  day  progress. 

2.  Let  either  side  seek  to  impose  its  will  upon  the  other 
by  coercion;  let  either  side  play  unfair,  and  the  institutions — 
however  well  planned — will  crumble  and  fall. 

The  process  is  slow,  too  slow  for  impatient  people,  but 
the  faith  of  the  framers  of  the  Protocol  is  not  wholly 
misplaced.  The  line  of  direction  in  the  way  of  bringing 
a  better  peace  and  a  higher  welfare  in  industry,  is  shown 
to  be  in  the  clearer  recognition  of  the  underlying  principles 
of  judicature  and  parliamentarism.  In  other  words,  that 
reason  and  debate  with  impartial  tribunals  {voluntarily 
selected)  furnish  the  way  out. 

191 


192  LAW  AND  ORDER  IN  INDUSTRY 

Experience  in  the  cloak  situation  demonstrates  con- 
clusively that  the  faith  in  collective  bargaining  is  justified 
and  that  the  system  is  practicable,  provided  adequate 
machinery  is  established  and  there  is  leadership  on 
both  sides  fully  expressing  the  spirit  of  the  arrange- 
ment. 

What  can  be  done  then  to  facilitate  the  making  of 
collective  agreements  generally?  The  failure  "to  recog- 
nize the  union"  brought  upon  the  head  of  young  Mr. 
Rockefeller  criticism  not  only  from  trades  unionists, 
but  from  those  who  undertook  to  speak  for  the  public. 
But  Mother  Jones  found  in  half  an  hour  that  it  was  not 
from  greed  that  Rockefeller  spoke.  She  found  that  he 
was  human  and  that  there  was  underlying  his  opposi- 
tion to  trades  unions  a  genuine  desire  to  improve  the 
conditions  of  all  workers,  and  particularly  the  Colorado 
mine  workers.  His  refusal  to  accept  personal  respon- 
sibility for  conditions  in  the  mining  camps  in  Colorado 
was  criticized  by  the  public,  of  course.*  But  while 
this  chapter  is  being  written  he  is  in  Colorado  with  the 
assistance  of  an  industrial  expert,t  engaged  now  in 
meeting  this  personal  responsibihty,  and  in  devising 
machinery  recognizing  the  right  of  the  workers  to  have 
their  grievances  redressed  and  to  have  their  standards 
improved.    The  machinery,  it  may  be  noted,  is  similar  to 

*  See  John  Fitch's  article  in  The  Survey,  August  21,  1915. 
t  Mackenzie  King. 


INFERENCES  I93 

the  machinery  outlined  in  Chapter  VI.  Representatives 
of  the  workers  and  representatives  of  the  employers 
join  in  investigating  the  facts  and  endeavor  to  arrive  at 
an  agreement.  If  they  fail,  the  matter  then  goes  to 
two  chief  representatives.  The  representatives  of  the 
workers  are  selected  by  the  people  actually  employed. 
They  are  not  selected  through  the  organization  of  the 
United  Mine  Workers  of  America.  Mr.  King  is  reported 
to  have  said  during  Mr.  Rockefeller's  visit  to  the  mines, 
when  this  method  of  adjusting  grievances  was  outlined 
to  the  press: 

There  is  to  be  no  recognition  of  the  United  Mine 
Workers  as  a  result  of  Mr.  Rockefeller's  visit  to  Colorado. 
Our  new  system  of  welfare  work  under  which  employees 
are  allowed  to  name  grievance  committees  to  protest  to 
mine  superintendents  over  conditions  they  don't  Uke 
is  the  company's  answer  to  demands  of  the  union  for 
recognition.    It  is  democratic  and  successful. 

The  plan  does  not  contemplate  official  dealings  with 
the  United  Mine  Workers  in  the  same  frank  and  open 
way  in  which  the  cloak  manufacturers  deal  with  the 
cloakmakers'  union,  or  the  Chicago  clothing  firm  deals 
with  the  garment  workers.  On  the  other  hand,  it  does 
recognize  the  underlying  principle  of  collective  bargain- 
ing, in  that  it  recognizes  that  the  workers  are  entitled  to 
be  organized  and  to  deal  with  their  employers  in  organ- 
ized fashion;  and  further  recognizes  the  necessity  for 


194  LAW  AND   ORDER  IN  INDUSTRY 

machinery  for  the  adjustment  of  grievances  and  for  the 
improvement  of  standards  by  juridical  and  parHamentary 
processes.  Up  to  the  very  point  of  dealing  with  the 
union  itself,  the  plan  is  a  full  acceptance  of  the  princi- 
ples underlying  the  Protocol.  Whether  or  not  the  plan  will 
work,  remains  to  be  seen.  Already  the  leader  of  the 
mine  workers,  is  reported  to  have  said: 

I  beUeve  Mr.  Rockefeller  is  sincere.  I  beHeve  he  is 
honestly  trying  to  improve  conditions  among  the  men  in 
the  mines.  His  efforts  probably  will  result  in  some 
betterments  which  I  hope  may  prove  to  be  permanent. 

However,  Mr.  Rockefeller  has  missed  the  fundamental 
trouble  in  the  coal  camps.  Democracy  never  has  existed 
among  the  men  who  toU  underground.  The  coal  com- 
panies have  stamped  it  out.  Now  Mr.  Rockefeller  is  not 
restoring  democracy,  he  is  trying  to  substitute  paternal- 
ism for  it. 

I  am  glad  to  assume  that  Mr.  Rockefeller  is  earnest  in 
his  desire  to  do  something  for  the  miners,  but  Mr.  Rocke- 
feller will  be  here  only  a  week  or  two.  After  he  is  gone 
what  then?  The  miners  will  have  neither  organization 
nor  contracts  to  protect  them.  They  will  be  at  the  mercy 
of  whatever  superintendent  or  pit  bosses  the  company 
may  select. 

When  I  talked  with  Mr.  Rockefeller  in  New  York  I 
told  him  that  if  he  really  wanted  to  do  something  for  the 
miners  he  ought  to  talk  with  President  White  of  the 
United  Mine  Workers  of  America  and  sign  a  contract 
with  the  organization.  Yes,  I  mean  recognition  of  the 
union.  That  is  the  only  remedy  which  will  permanently 
cure  the  trouble  in  Colorado.     Without  union  recogni- 


INFERENCES  195 

tion  I  fear,  I  gravely  fear,  that  all  of  Mr.  Rockefeller's 
efiforts  will  count  for  little.* 

In  the  report  of  the  representatives  of  the  employers 
upon  the  Federal  Industrial  Relations  Conunission,  ten 
explanations  are  offered  for  employers'  opposition  to 
dealing  with  trades  unions,  viz.: 

(a)  Sympathetic  strikes. 

(b)  Jurisdictional  disputes. 

(c)  Labor  union  poUtics. 
{d)  Contract  breaking, 
(e)  Restriction  of  output. 

(/)  Prohibition  of  the  use  of  non-union  made  tools  and 
materials. 

(g)  Closed  shop. 

(h)  Contests  for  supremacy  between  rival  unions. 

(i)  Acts  of  violence  against  non-union  workers  and  the 
properties  of  employers. 

(j)  Apprenticeship  rules.f 

Perhaps  the  cause  of  more  conflicts  than  any  other  of 
those  mentioned,  is  the  "closed  shop."  The  "preferential 
imion  shop"  established  through  the  Protocol  in  1910, 
would  seem  to  furnish  the  modus  vivendi  for  elimination 
of  this  obstacle,  (e),  (/)  and  (j)  relating  to  the  conflict 
between  what  we  may  call  "the  efficiency  principle," 
and  "control  of  the  work,"  is  substantially  the  same 

*  New  York  Times,  September  23,  19 15. 

t  Report  of  Federal  Commission  on  Industrial  Relations  (1915),  p.  414. 


196  LAW  AND  ORDER  IN  INDUSTRY 

kind  of  issue  that  produced  the  191 5  clash  in  the  cloak 
industry.  The  principles  laid  down  by  the  Mayor's 
Council,  and  now  accepted  by  the  garment  workers' 
union,  would  seem  here  to  furnish  the  way  out. 

(6)  Jurisdictional  disputes,  (c)  Labor  union  politics, 
and  (h)  Contests  for  supremacy  between  rival  imions,  are 
obstacles  to  be  overcome  by  strong  national  self-super- 
vision and  self-control  of  unions  generally.  Only  the 
trades  unions  themselves  can  change  this.  It  will  come 
about  when  they  recognize  that  the  federationist  theory 
will  not  suffice  to  meet  the  growing  obligations  of  great 
national  unions  dealing  collectively  with  employers. 
They  must  vest  in  the  national  Federal  body  power  simi- 
lar to  that  vested  by  the  states  in  the  Federal  Govern- 
ment. To-day  the  American  Federation  of  Labor  oc- 
cupies the  same  position  with  reference  to  its  power  to 
make  good  in  dealing  with  associated  employers,  that  the 
colonies  occupied  in  dealing  with  other  nations  before 
we  created  a  Federal  Government. 

But  of  the  great  obstacles  enumerated  in  the  employers' 
schedule,  (d)  Contract  breaking,  and  (i)  Acts  of  violence 
against  non-union  workers  and  the  properties  of  employ- 
ers, are  the  most  serious. 

As  to  contract  breaking,  trades  unionists  themselves 
are  more  and  more  coming  to  realize  its  seriousness.  The 
employers'  representatives  on  the  Federal  Commission 
quote  from  two  official  union  journals,  one  the  Coal 


INFERENCES  197 

Age  of  December  20,  1913,  issue  by  the  Association 
of  Bituminous  Coal  Operators  of  Central  Pennsylvania, 
and  the  other  from  the  United  Mine  Workers'  Journal, 
ofi&cial  organ  of  the  United  Mine  Workers  of  America, 
in  each  of  which  the  officials  clearly  recognize  and  con- 
demn violations  of  contracts  by  members  of  the  union. 
On  this  point  the  official  organ  says: 

I  believe  I  am  safe  in  saying  that  no  problem  has  given 
them  (the  officials  of  the  union)  so  much  concern  as  the 
problem  of  local  strikes  in  violation  of  agreements. 

Thousands  of  dollars  are  expended  every  year  in  an 
effort  to  organize  the  250,000  non-union  miners  in  the 
United  States,  while  hundreds  of  our  members  go  on 
strike  almost  every  day  in  absolute,  unexcusable  viola- 
tion of  existing  agreements.* 

And  in  the  other,  where  suspension  of  work  was  resorted 
to  in  order  to  compel  a  complete  unionizing  of  the  mine: 

This  conduct  is  in  direct  violation  of  the  contract, 
and  specifically  interferes  with  and  abridges  the  right  of 
the  operator  to  hire  and  discharge;  of  the  management  of 
the  mine,  and  of  the  direction  of  the  working  forces ;  this 
conduct  in  violation  of  contract  on  the  part  of  the  Mine 
Workers,  as  well  as  that  mentioned  in  the  preceding 
paragraph,  has  resulted  in  more  than  one  hundred  strikes 
during  the  life  of  our  scale  agreement.! 

The  Protocol  in  the  cloak  industry,  after  five  years  of 

*  Report  of  Federal  Commission  on  Industrial  Relations  (1915),  p.  420. 
t  Id.,  p.  421. 


ipS  LAW  AND  ORDER  IN  INDUSTRY 

operation,  was  terminated  on  account  of  a  shop  strike 
unmitigated  in  time.  Why  should  an  entire  industry 
suffer  on  both  the  workers'  and  the  employers'  side,  and 
why  the  public,  because  of  the  law-breaking  of  a  small 
anarchically-minded  group? 

In  those  industries  where  the  employers  control  the 
output  and  are  not  affected  by  competition,  the  prob- 
lems of  collective  bargaining  are  simple.  It  makes  no 
difference  what  wages  the  competitor  pays  nor  what 
standards  of  labor  he  observes.  But  in  those  indus- 
tries where  the  competition  in  labor  cost  is  vital  and  de- 
terminative of  success  or  failure  in  business,  employers 
will  not  accept  willingly  the  methods  of  collective  bar- 
gaining until  this  competitive  obstacle  is  overcome. 
This  is,  indeed,  the  crux  of  the  difficulties  in  the  cloak 
industry. 

Mr.  Grant,  in  his  study  of  the  building  trades,  finds  the 
following  process  taking  place:  The  employer  of  union 
men  complains  to  the  union  that  a  competitor  is  allowed 
to  go  on  under  non-union  conditions.  Naturally,  he 
feels  that  it  is  not  fair  to  him  to  be  obliged  to  observe 
all  the  union  rules  and  regulations  when  his  competitors 
are  free  from  like  restrictions.  When  the  union's  busi- 
ness agent  comes  along  and  complains  because  of  some 
more  or  less  important  violation  of  a  rule,  the  employer 
is  apt  to  get  angry  and  say,  "Why  don't  you  go  after  the 
non-union  work  and  leave  me  alone?    Mr.  Smith  and  Mr. 


INFERENCES  199 

Jones  are  employing  non-union  men.  They  can  under- 
bid me  on  every  job  I  estimate  against  them.  They  are 
not  paying  the  wages.  But  you  don't  bother  them. 
You  keep  after  me.  I  am  growing  tired  of  it,  and  if 
something  is  not  done  soon,  I  shall  quit  employing  union 
men."  * 

The  same  story  can  be  told  in  the  cloak  industry. 
Mr.  Grant  says: 

The  argument  is  logical  and  the  union  business  agent 
knows  it.  If  he  does  not  make  some  effort  to  stop  the 
non-union  work,  another  firm,  probably,  will  be  lost  to 
the  union.  He  is  pressed  by  the  members  of  his  union 
demanding  protection  from  the  unfair  competition  of 
the  non-union  man,  and  he  is  pressed  by  the  union  em- 
ployer who  demands  protection  against  his  unfair  com- 
petitor. Neither  suggests  violence,  but  if  the  non-union 
firms  will  not  meet  the  business  agent  or  discuss  condi- 
tions with  him,  he  resorts  to  the  only  expedient  which 
appears  open  to  him.  Either  the  non-union  men  are 
assaulted,  or  an  attempt  is  made  to  destroy  the 
work. 

The  structural  ironworkers  tried  both  methods  and  the 
latter  seemed  most  eiEfective  and  least  dangerous.  In  the 
beginning  of  the  trouble,  when  the  slugging  of  non-union 
men  was  the  rule,  the  arrests  were  numerous  and  many 
convictions  were  obtained.  The  dynamiters  carried  on 
their  work  of  destruction  for  five  years  before  they  were 
caught,  t 

*  Report  on  the  International  Association  of  Bridge  and  Structural 
Ironworkers,  by  Luke  Grant,  pp.  136,  137. 
Ud.,   p.  137. 


200  LAW  AND  ORDER  IN  INDUSTRY 

No  self-respecting  employers'  association  and  no  self- 
respecting  union  can  resort  to  methods  of  this  sort  for 
meeting  competition.  We  seem  to  be  running  around 
within  two  vicious  circles:  either  {a)  The  Protocol  em- 
ployer breaks  his  agreement  because  the  non-Protocol 
employer  is  breaking  his  agreement;  or  the  workers 
break  their  agreement  by  going  on  strike  because  the 
employer  breaks  his  agreement, — an  attempt  to  cure 
contract-breaking  by  contract-breaking — Or,  (6)  The 
Protocol  employer  breaks  his  agreement  because  the  non- 
Protocol  employer  breaks  his.  The  union  gets  after  the 
non-Protocol  employer  and  calls  a  strike.  Strike  means 
violence.  If  the  parties  were  perfectly  frank  with  each 
other,  the  conversation  would  run  something  like  this: 

Employers:  We   will   make   an   agreement  with   you 

provided  you  can  enforce  the  same  standards  against 

our  competitors. 
The  Union:  We  are  willing  to  obligate  ourselves  to  do 

that. 
Employers  :  How  can  you  do  it? 
The  Union:  By  strikes. 
Employers:  Well,  your  strikes  without  violence  are  not 

generally  successful. 
The  Union:  Then  we  will  have  to  use  violence. 
Employers:  Then  we  can't  join  with  you. 
The  Union:  Then  we'll  strike  against  you. 
Employers:  Well,   your  strikes   against  us  won't  be 

successful  unless  you  use  violence. 
The  Union:  We  know  that. 


INFERENCES  20I 

Employers:  Well,  if  you  use  violence  we  will  too. 
The  Union:  All  right,  let's  have  it  out. 

Of  course,  no  conversation  of  this  sort  ever  actually 
takes  place,  for  the  obvious  reason  that  neither  party 
would  be  so  frank,  yet  that  the  process  goes  on  as  a 
mental  process,  is  too  true  to  be  disputed.  As  Mr.  Grant 
says:  "Mr.  St.  John  gave  public  expression  to  views  that 
are  privately  entertained  by  tens  of  thousands."  * 

Notwithstanding  the  clear  understanding  of  what 
constitutes  peaceful  picketing,  in  practice  it  is  not 
carried  out.    Mr.  Grant  says: 

The  pickets  know  that;  so  do  the  employers.  It  is  not 
necessary  that  the  pickets  actually  assault  the  employees 
who  desire  to  enter  the  factory.  If  the  pickets  assemble 
in  sufficient  numbers,  it  is  possible  to  intimidate  those 
seeking  employment,  without  actually  assaulting  them. 
But  it  is  the  fear  of  possible  assault  that  brings  results; 
not  moral  suasion.  The  "moral  suasion"  argument  is 
good  in  the  courtroom  or  on  the  pubHc  platform,  but 
around  the  factory  it  counts  for  practically  nothing. 
Every  one  with  practical  experience  of  conditions  knows 
that.f 

"It  is  better  to  meet  the  facts  squarely  than  to  dodge 
them  by  subterfuge  and  hypocrisy."  The  truth  of  the 
matter  is,  that  if  strikes  cannot  be  conducted  success- 

*  Report  on  the  International  Association  of  Bridge  and  Structural 
Ironworkers,  by  Luke  Grant,  p.  in. 
f/cJ.,  p.  no. 


202  LAW  AND  ORDER  IN  INDWSTRYi  I 


fully  without  violence,  nor  successfully  resisted  without 
violence,  both  sides  continue  to  move  in  a  vicious  circle. 
The  business  factor  of  competition  is  at  the  bottom  of 
the  whole  difficulty.  Its  solution  is  the  key  to  the  whole 
problem.  A  careful  study  of  the  experience  with  col- 
lective agreements  in  Great  Britain  led  the  Industrial 
Council,  made  up  of  representative  employers  and  rep- 
resentative trades  unions,  to  say: 

In  cases  where,  however,  there  is  a  considerable 
minority  outside  the  Employers'  Association,  and  the 
work-people's  organization  is  not  sufficiently  strong  to 
deal  with  such  minority,  there  is  a  real  danger  that 
effective  voluntary  agreements  cannot  be  maintained 
even  as  regards  the  majority.  Where  the  agreement 
provides  for  a  particular  rate  of  wages  (and  the  industry 
is  one  in  which  the  wages-bill  is  a  prominent  factor  in  the 
cost  of  production)  the  members  of  the  Employers' 
Association  who  are  parties  to  the  agreement,  and  who 
comply  with  its  terms,  are  at  a  distinct  disadvantage  as 
compared  with  those  non-associated  firms  who,  while  not 
being  bound  to  pay  the  rate  of  wages  fixed  by  the  agree- 
ment, are  competitors  with  them.  The  influence  of  such 
a  non-complying  and  competitive  minority  is  Ukely  to 
endanger  the  continuance  of  the  agreement,  and  we  are 
of  opinion  that  means  should  be  provided  whereby,  at 
the  request  of  the  parties  to  an  agreement,  and  after 
suitable  inquiry,  its  operation  should  be  extended  to 
include  the  minority  and  its  terms  made  applicable  to 
them.* 

*  Reprinted  in  Bulletin  133,  U.  S.  Department  of  Labor,  Par.  47. 


INFERENCES  203 

In  the  history  of  the  reform  of  municipal  politics,  we 
have  learned  some  lessons  from  the  experiences  of  the 
last  quarter  of  a  century.  The  ''guilt  is  personal" 
theory  was  carried  out  in  the  attack  upon  Tweed  and 
upon  Croker.  With  our  perspective  modified  in  the 
light  of  experience,  we  now  realize  that  Tweed  and 
Croker  were  merely  applying  to  municipal  affairs  the 
general  ethical  standards  of  their  own  friends  in  mer- 
cantile afifairs.  The  community  applied  a  different 
ethical  standard  to  municipal  affairs  than  men  applied 
to  their  own  private  business.  We  had  waves  of  reform. 
The  battle  ranged  about  moral  standards  and  their 
enforcement.  Little  attention  was  paid  to  the  business 
standards  and  the  administration  of  a  city.  When  the 
reformers  were  swept  into  power,  they  made  "reform 
hideous"  because  they  failed  to  recognize  and  face  the 
business  factors  in  the  municipal  problems.  It  did  not 
seem  that  sound  financial  management  and  efl&cient 
business  administration  could  be  squared  with  high 
moral  purpose  and  principles.  When  the  municipal 
reformers  got  to  meeting  the  facts  squarely  and  studied 
the  factors  that  made  for  better  government,  they 
began  to  make  real  progress.  The  Citizens'  Union 
established  a  Legislative  Bureau  in  Albany,  got  at  the 
facts,  reported  them  to  the  community  and  then  and 
there  in  New  York  began  a  steady  improvement  in  the 
tone  and  character  of  legislators  and  legislation.    The 


204  LAW  AND  ORDER  IN  INDUSTRY 

publication  of  the  records  of  the  legislators  made  for  the 
advancement  or  retardation  of  men  in  politics,  accord- 
ing to  their  deserts.  Similarly,  the  Bureau  of  Municipal 
Research  found  the  facts  in  reference  to  municipal  ad- 
ministration, disclosed  them,  and  made  for  better  under- 
standing and  sounder  judgment  upon  issues  relating  to 
the  management  of  the  city. 

Is  it  not  possible  that  the  social  reformer  needs  still 
to  learn  the  lesson  that  the  municipal  reformer  has  al- 
ready learned?  Industrial  peace  and  welfare  is  not  to 
be  secured  by  acquiescence  in  violence  as  a  method,  nor 
by  attacking  personally  individual  employers,  or  even 
the  whole  class.  Employers  generally  already  are  aware 
of  the  value  of  collective  bargaining  to  society  generally. 
They  accept  it  in  theory  and  in  principle.  What  they 
want  to  know  is  how  to  run  business  by  it.  We  will  get 
more  collective  agreements  when  we  solve  the  problem  of 
enforcement  of  standards.  Those  who  from  the  outside 
believe  in  the  social  value  of  joint  agreements  between 
unions  and  employers'  associations,  must  not  rely  upon 
violence  or  law-breaking  as  the  means  for  securing  them. 
They  must  face  the  business  factors  squarely.  When 
we  shall  do  this  we  shall  make  progress, — as  we  did  in 
municipal  reform. 


CHAPTER  XrX 

LAW  BREAKING 

To  strike  without  orders  from  his  union,  is  for  the  union 
member  to  break  the  law  of  his  own  organization.  To  pay 
under  the  accepted  scale  is  for  the  association  member 
to  break  the  law  of  his  own  organization.  For  the  em- 
ployer outside  of  the  association  under  a  union  agree- 
ment, under-payment  of  scale  is  plain  violation  of  his 
pledged  word. 

Violations  of  agreements  are  simply  the  efforts  of  men 
dissatisfied  with  their  bonds  to  make  short-cuts  through 
the  law — the  law  of  their  own  making.  The  employer 
who  breaks  the  law  invites  the  workers  to  follow  his  ex- 
ample. The  worker  who  breaks  the  law  incites  the  em- 
ployer to  hit  back.   The  formula  each  comes  to  employ  is, 

wrong  +  wrong  =  right. 
This  formula  is  not  new  in  industry.   Two  recent  studies, 
each  by  trained  investigators,*  made  under  the  direction 
of  the  Federal  Industrial  Relations  Commission,  confirm 
the  impression  that  the  lines  of  strength  and  weakness 

*  Report  on  the  Colorado  Strike,  by  George  P.  West;  and  Report  on 
the  International  Association  of  Bridge  and  Structural  Ironworkers, 
by  Luke  Grant. 

20S 


2o6  LAW  AND  ORDER  IN   INDUSTRY 

we  find  in  the  cloak  industry,  are  common  to  other  in- 
dustries. No  truth  is  so  completely  demonstrated  as  the 
futility  of  law-breaking  as  a  method  of  accomplishing 
results,  whether  employed  by  workers  or  by  employ- 
ers. 
Robert  Hunter  says: 

The  problem  of  methods  has  always  been  a  vital 
matter  to  the  labor  movement,  and,  for  a  hundred  years 
at  least,  the  quarrels  now  dividing  syndicaHsts  and 
sociahsts  have  disturbed  that  movement.  In  the  Chart- 
ist days  the  "physical  forcists"  opposed  the  "moral 
forcists,"  and  later  dissensions  over  the  same  question 
occurred  between  the  Bakouninists  and  the  Marxists. 
Since  then  anarchists  and  social  democrats,  direct 
actionists  and  political  actionists,  syndicaUsts  and 
socialists  have  continued  the  battle.* 

After  a  calm  study  of  the  entire  history  of  the  labor 
movement,  Mr.  Hunter  concurs  with  the  conclusion  of 
Morris  Hillquit  (now  counsel  for  the  Cloakmakers' 
Union).  Says  Mr.  Hunter:  "Condemning  without  re- 
serve every  resort  to  lawbreaking  and  violence,  and  in- 
sisting that  both  were  '  ethically  unjustifiable  and  tactic- 
ally suicidal,'  Mr.  Hillquit  pointed  out  that  whenever 
any  group  or  section  of  the  labor  movement  has  em- 
barked upon  a  policy  of  '  breaking  the  law'  or  using  '  any 
weapons  which  will  win  the  fight,'  whether  such  policy 

*  "Violence  and  the  Labor  Movement,"  by  Robert  Hunter,  Preface, 
p.  ix. 


LAW  BREAKING  207 

was  styled  'terrorism,'  'propaganda  of  the  deed,'  'direct 
action,'  'sabotage,'  or  'anarchism,'  it  has  invariably 
served  to  demoralize  and  destroy  the  movement,  by 
attracting  to  it  professional  criminals,  infesting  it  with 
spies,  leading  the  workers  to  needless  and  senseless 
slaughter,  and  ultimately  engendering  a  spirit  of  dis- 
gust and  reaction.  It  was  this  advocacy  of  'law-break- 
ing '  which  Marx  and  Engels  fought  so  severely  in  the 
International  and  which  finally  led  to  the  disruption  of 
the  first  great  international  parliament  of  labor,  and  the 
socialist  party  of  every  country  in  the  civilized  world 
has  since  uniformly  and  emphatically  rejected  that 
pohcy."  * 

In  the  Ironworking  Industry: 

Diplomacy  was  out  of  the  question,  so  dynamite  was 
tried.  It  proved  to  be  a  colossal  blunder,  as  was  the 
rejection  of  the  peace  terms  offered  in  the  beginning  of 
the  fight. 

The  campaign  of  violence  was  a  failure  because  of  the 
determination  and  financial  resources  of  the  employers 
opposing  the  union.  Had  the  ironworkers  expended  the 
same  money  and  energy  in  trying  to  organize  the  open 
shop  men  by  legitimate  methods,  the  results  might  have 
been  different.! 

Mr.  Grant  gives  as  one  of  his  conclusions,  that  though 

*  Violence  and  the  Labor  Movement,"  by  Robert  Hunter,  Preface, 
p.  viii.    The  New  York  Call,  November  20,  1911. 

t  Report  on  the  International  Association  of  Bridge  and  Structural 
Ironworkers,  by  Luke  Grant,  p.  138. 


2o8  LAW  AND  ORDER  IN  INDUSTRY 

there  may  be  found  many  instances  where  the  "use  of 
physical  force  has,  for  a  time,  won  advantage  for  the 
side  that  has  used  it,"  the  gains  "are  temporary  and  do 
not  make  for  permanent  industrial  peace";  that  though 
an  employer  through  force  of  circumstances  submits 
"to  certain  conditions  which  he  believes  are  unjust," 
and  the  "fear  of  violence  and  the  destruction  of  property 
may  cause  him  to  make  terms  with  a  union  against 
his  will  and  business  judgment,"  submission  through  such 
fear  or  business  necessity  will  lead  him  to  "break  from 
the  restraint  on  the  first  opportunity."  The  same  rule 
apphes  to  workingmen.  "Force  may  subjugate  one  side 
or  the  other  in  an  industrial  dispute,  but  it  will  not  re- 
move discontent.    It  will  not  establish  justice."  * 

Before  the  United  States  Commission  on  Industrial 
Relations,  the  Secretary  of  the  Industrial  Workers  of 
the  World  said  that  he  believed  in  violence  if  it  were 
necessary  to  accomplish  a  victory;  that  if  destroying 
property  was  essential  to  produce  the  result,  he  was 
ready  to  join  in  the  destruction  of  property.  And,  in 
justification  of  the  views  he  expressed,  he  asserted  that 
employers  did  not  hesitate  to  use  their  power  to  oppress 
workers  and  that  their  action  in  forcing  child  labor, 
limiting  the  opportunities  of  children  to  obtain  an  edu- 
cation  and    working  their   workers   long   hours,  thus 

*  Report  on  the  International  Association  of  Bridge  and  Structural 
Ironworkers,  by  Luke  Grant,  p.  139. 


LAW  BREAKING  209 

destroying  their  health  and  efficiency,  was  a  brutal 
application  of  force  as  bad  as  the  workers'  resort  to 
violence.  Mr.  Grant  says  that  though  "the  views  of 
Mr.  St.  John  are  extreme  and  most  labor  leaders  will 
openly  repudiate  them,"  he  did,  in  fact,  give  "public 
expression  to  views  that  are  privately  entertained  by 
tens  of  thousands.  It  is  results  that  the  workers  are 
striving  for  and  the  history  of  the  labor  movement 
proves  that  they  have  been  compelled  to  fight  for  every 
important  improvement  in  conditions  which  they  now 
enjoy."  *  Again,  that  "Had  the  workers  always  taken 
the  course  which  the  letter  of  the  law  requires  them  to 
take,  they  would,  in  all  probability  still  be  working  twelve 
or  fourteen  hours  a  day,"  f 

In  Colorado  we  find  employers  freely  violating  the  law. 
If  one  per  cent  of  what  they  are  charged  with  by  Mr. 
West  be  true,  they  deserve  his  severe  condemnation. 
From  breaking  one's  word  and  breaking  the  law,  to  con- 
doning violence,  is  an  easy  descent,  and  from  condoning 
violence  to  the  employment  of  hired  "sluggers"  or 
"thugs"  is  the  next  easy  step.  As  Mr.  Grant  says: 
"Violence  grows.  From  'punching  the  nose  of  a  scab' 
openly,  where  he  has  a  chance  to  strike  back,  it  is  only  a 
few  steps  to  lying  in  ambush  for  him  and  trying  to  brain 

*  Report  on  the  International  Association  of  Bridge  and  Structural 
Ironworkers,  by  Luke  Grant,  p.  iii. 
\  Id.,  p.  112. 


2IO  LAW  AND  ORDER  IN  INDUSTRY 

him  with  a  bludgeon."  There  has  been  a  marked  change 
(as  Mr.  Grant  finds)  in  the  building  trades  in  the  nature 
of  the  violence  committed  and  in  the  methods  used,  and 
the  ordinary  workman  who  in  former  days  was  apt  to 
use  his  fists  on  the  head  of  the  "scab"  for  the  sake  of 
"the  cause,"  seldom  does  so  now.  "His  place  has  been 
taken  by  the  professional  thug  and  gunman.  Violence  has 
become  commercialized  and  made  more  brutal ^  *  As 
Mr.  Grant  says:  "It  is  puerile  to  contend  that  force  and 
violence  are  not  accompaniments  of  strikes  and  lock- 
outs." t  Strikes  in  the  cloak  industry,  as  we  have  seen, 
furnish  no  exception  to  this  rule. 

"On  one  side  is  the  employer  who  rightly  or  wrongly 
believes  that  he  is  justified  in  refusing  to  accede  to  the 
demands  of  the  workers.  He  recognizes  that  if  they  are 
not  satisfied  with  these  demands  they  may  leave  their 
places  and  he  may  substitute  others.  This  is  the  theory 
of  the  law  and  the  justification  for  organized  withdrawal 
from  employment.  But  this  is  not  the  whole  of  the 
matter.  On  the  other  side  are  the  workers,  who  "feel 
they  have  a  property  right  in  the  jobs  they  formerly 
held.  That  the  law  holds  they  have  no  such  right,  and 
that  anyone  who  is  willing  to  accept  the  conditions,  shall 
have  a  right  to  fill  the  jobs,  without  fear  or  molestation, 

*  Report  on  the  International  Association  of  Bridge  and  Structural 
Ironworkers,  by  Luke  Grant,  pp.  115,  116. 
t  Id.,  p.  108. 


LAW  BREAKING  21 1 

does  not  alter  the  situation  in  the  minds  of  the  workers. 
They  look  upon  the  new  employees  as  enemies,  who  are 
taking  the  bread  and  butter  out  of  their  mouths  and  the 
mouths  of  their  families.  They  cannot  see  the  justice 
of  the  law.  .  .  .  They  refuse  to  accept  the  dictum  of  the 
law  and  of  the  employer,  that  they  no  longer  have  any 
claim  on  their  former  jobs.  They  want  the  jobs,  which 
they  think  are  theirs.  .  .  .  What  is  the  natural  thing 
for  the  strikers  to  do?  Prevent  new  employees  from 
taking  the  jobs  in  that  factory,  of  course.  If  that  can  be 
done  by  peaceful  methods,  so  much  the  better.  If  it 
cannot,  then  it  must  be  done  by  violent  methods.  The 
important  thing  is  that  it  be  done.  That  is  the  way  the 
workers  view  the  situation,  the  law  to  the  contrary  not- 
withstanding." * 

When  they  reach  this  point  the  employer  feels  justified 
in  repelling  their  attacks  by  similar  use  of  force.  Thus 
serious  industrial  problems  are  settled  by  hired  strong- 
arm  men,  fighting  it  out  on  the  streets! 

The  study  of  these  other  industries  helps  us  to  un- 
derstand the  Protocol  problem.  Without  peace  agree- 
ments we  are  face  to  face  with  law-breaking,  running 
to  riot  and  murder.  With  peace  agreements  we  are  again 
face  to  face  with  law-breaking,  but  law-breaking  of  a 
lesser  kind,  though  inherently  of  the  same  moral  nature. 

*  Report  on  the  International  Association  of  Bridge  and  Structural 
Ironworkers,  by  Luke  Grant,  pp.  109,  no. 


212  LAW  AND  ORDER  IN  INDUSTRY 

The  experience  of  the  cloak  industry  demonstrates  that 
where  large  numbers  of  people  are  involved,  there  are 
boimd  to  be  breaches  of  faith,  breaches  of  the  law  of  the 
parties'  own  making.  But  there  is  clear  progress.  Since 
1910,  as  we  have  seen,  there  has  been  nothing  approach- 
ing the  reign  of  anarchy  of  pre-Protocol  days.  On  the 
contrary,  the  gravest  issues  arising  in  industry  have  been 
met  and  disposed  of  in  parliamentary  and  juridical 
fashion.  There  has  been  no  general  strike  since  igio. 
Both  sides  have  been  driven  by  the  force  of  bitter  expe- 
rience to  prefer  the  method  of  law  and  order,  even  when 
under  ordinary  circumstances,  either  might  have  pre- 
ferred to  test  the  other's  strength.  Yet  it  would  be  a 
perversion  of  the  truth  if  we  failed  to  schedule  those 
manifestations  of  anarchy  that  still  persist,  and  persist  in 
spite  of  provision  for  orderly  redress  of  grievances. 

The  anarchy  that  we  are  here  now  considering,  how- 
ever, is  not  the  anarchy  prevailing  only  in  industrial 
relations  nor  in  immigrant  industries.  It  is, — to  quote 
a  keen  writer  on  American  politics — indicative  of  an 
"insidious  and  dangerous  moral  disorder,"  running 
through  the  whole  of  American  life.  It  is,  indeed,  the 
"hypocritical  homage  to  a  law"  which  the  American 
democracy  does  "not  intend  to  obey  except  when  con- 
venient." 

The  Frank  murder  took  place  in  Georgia.  It  was  an 
American  outrage.    The  offenders  wereneither  immi- 


LAW  BREAKING  213 

grants-nor-sons-of-immigrants..  It  was  "in  a  deeper  sense 
only  an  unusually  sharp  and  shameless  illustration  of  a 
besetting  weakness  of  the  American  democracy."  The 
local  communities  in  our  country  "have  wished  more 
than  anything  else  to  be  left  alone";  though  they  did  not 
attempt  to  get  along  without  law,  they  did  in  fact  wish 
^^ freedom  to  do  things  in  their  own  way,  no  matter  whether 
that  way  was  right  or  wrong.''  They  promoted  law  "into 
a  kind  of  disembodied  coadjutor  of  King  Demos.  But 
they  wanted  on  suitable  occasion  to  be  able  to  exempt  them- 
selves from  the  reign  of  the  law.  .  .  .  The  people  set  up  an 
impersonal  king,  whom  they  could  unite  to  worship,  but 
whom  they  did  not  have  to  obey.  .  .  .  The  American 
democracy  submitted  to  legalism  only  because  legalism 
did  not  forbid  a  liberal  measure  of  license  outside  of  the 
law.  ..."  And  this  writer  observes  that  "Instead  of 
paying  hypocritical  homage  to  a  law  which  it  did  not 
intend  to  obey  except  when  convenient,  the  future 
American  democracy  must  above  all  be  sincere  and 
thoroughgoing.  It  cannot  afford  to  place  a  pretender  on 
a  throne  in  order  to  have  a  plausible  excuse  for  escaping 
now  and  then  from  his  authority."  *  No,  anarchy  and 
lawlessness  in  our  country  are  not  confined  to  workers  or 
to  employers.  It  is  in  the  very  atmosphere  in  which  we 
hve. 

*  Georgia  and  the  Nation,  The  New  Republic,  September  4,  1915, 
pp.  113,  114.    (Italics  ours.) 


214  LAW  AND   ORDER  IN  INDUSTRY 

The  mere  making  of  collective  agreements  or  the  inven- 
tion of  new  industrial  appliances  for  redressing  grievances 
or  for  establishing  law  and  order  in  industry  will  not 
wholly  eliminate  this  anarchical  tendency.  Protocols 
cannot  bring  to  industry  the  moral  backbone,  nor  invest 
it  with  the  moral  fiber  lacking  in  American  life  generally. 
While  its  philosophy  will  gradually  enter  the  dim  re- 
cesses of  minds  already  saturated  with  the  strong  drink 
of  license,  until  employers  and  workers  generally  learn 
that  drimkenness  does  not  pay,  temperance  will  not 
become  a  steady  daily  diet.  The  prime  value  of  Protocol 
institutions  lies  in  their  educational  influence  upon  those 
actually  engaged  in  the  work.  It  takes  time  and  much 
suffering,  but  it  leads  more  and  more  to  an  acceptance 
of  law  and  order  as  something  binding  in  and  for  their 
own  sake.  We  are,  of  course,  not  in  this  instance  speak- 
ing of  law  in  the  sense  of  organized  legalism  or  formalism. 
We  are  here  dealing  with  law  of  the  parties'  own  making, 
i.  e.,  the  law  of  the  contract,  freely  made,  and  we  are 
speaking  of  defaults  in  the  observance  of  one's  own  obli- 
gations. The  employer  who  "cancels  his  orders"  is  as 
low  in  the  scale  as  the  worker  who  goes  out  on  "shop- 
strike"  in  violation  of  the  Protocol.  If  we,  in  America, 
would  not  exchange  our  political  philosophy  with  the 
Germans,  we  must  get  the  discipline  of  "est  ist  verboten" 
in  some  other  way.  We  take  the  position  that  a  pledge 
or  a  treaty  is  not  a  mere  "scrap  of  paper."    This  is  the 


LAW  BREAKING  215 

standard  by  which  we  in  America  Judge  the  great  inter- 
national crisis  now  before  us.  Yet,  we  ourselves,  put 
law  "as  a  pretender  on  a  throne  in  order  to  have  a 
plausible  excuse  for  escaping  now  and  then  from  his 
authority." 

The  lawyer  in  these  industrial  situations  may  perform 
his  duty  as  advocate  for  either  side  in  such  controversial 
matters  as  are  sure  to  arise.  He  may  invent  new  ma- 
chinery to  eliminate  friction.  He  may  join  in  carrying 
out  the  poUcies  assented  to  by  both  parties  and  in  finding 
solutions  for  joint  problems.  But  beyond  all  these 
things,  the  lawyer's  job  primarily  is  one  of  education  in 
first  principles — the  principles  of  law  and  order  in 
democratic  society.  He  must  emphasize  the  sanctity  of 
the  pledged  word  and  the  adopted  rule.  He  must  secure 
more  and  more  the  ready  acceptance  of  the  slower, 
orderly  way  of  redressing  wrongs.  The  "short-cut"  is  a 
snare  and  a  delusion.    It  leads  to  the  woods. 


CHAPTER  XX 

THE  WHITE  PROTOCOL  LABEL 

Within  six  months  after  it  had  gotten  under  way,  the 
Board  of  Sanitary  Control  determined  to  encourage  the 
maintenance  of  sanitary  conditions  by  awarding  a  cer- 
tificate to  employers  complying  with  its  standards.  In 
effect  it  was  a  "good  ticket"  for.  good  behavior.  This 
certificate  was  of  value.  It  gave  a  sense  of  personal 
pride  to  the  employer.  When  the  system  had  been  in 
operation  for  a  short  time,  it  occurred  to  me  that  if 
instead  of  a  good  ticket  for  the  shop,  we  could  have  a  good 
ticket  for  the  garment,  it  would  have  a  greater  value.  I 
assumed  that  there  were  enough  women  who  would 
prefer  to  wear  clothes  made  under  sanitary  and  fair  con- 
ditions to  give  the  preference  to  such  garments.  At 
present,  the  power  of  the  consumer  is  not  effectively 
utilized  to  affect  sanitary  and  other  working  condi- 
tions. My  thought  was  the  same  in  general  as  the  one 
underlying  the  National  Consumers'  League.  Indeed 
that  organization  was  quick  to  encourage  us  by  offering 
cooperation.  Instead  of  a  union  label  under  the  con- 
trol and  disposition  of  the  union,  it  seemed  to  me  that  a 
joint  label  issued  under  the  supervision  of  the  triangular 

216 


THE  WHITE   PROTOCOL  LABEL  217 

board,  the  representatives  of  the  public,  the  workers 
and  the  employers,  could  be  transformed  into  a  commer- 
cial as  well  as  a  social  asset.  It  should  not  be  made  com- 
pulsory. It  should  be  available  to  all  manufacturers  who 
meet  the  conditions  underlying  its  issuance. 

Then,  if  the  women  of  the  country  instead  of  expressing 
sympathy  with  the  garment  workers  only  at  times  of 
strike,  could  be  induced  regularly  to  apply  their  power 
at  the  really  effective  point,  namely  the  moment  of 
purchase  of  the  garment,  we  should  secure  a  really  prac- 
ticable way  of  meeting  the  competition  of  the  below 
standard  manufacturer.  Before  the  National  Conference 
of  Charities  and  Corrections  at  Cleveland  in  June,  191 2, 
I  laid  the  matter  out  as  follows: 

The  responsibility  for  the  existence  of  conditions  that 
are  unsafe  for  the  worker  is  a  responsibility  resting  upon 
the  entire  community.  It  should  be  shifted  neither  to  the 
shoulders  of  the  employers  nor  to  the  workers,  nor  to 
both  combined.  The  public  itself  is  responsible.  If 
women's  wear  is  manufactured  under  such  conditions  as 
to  make  for  unsound  men  and  women,  society  as  a  whole 
is  responsible.  It  seems  to-the  writer  that  before  we  get 
right  standards  of  living  for  the  community,  the  whole 
basis  of  purchase  by  the  consumer  must  be  changed,  and 
he  believes  that  the  time  is  almost  at  hand  when  this 
would  seem  practicable.  The  present  basis  of  purchase 
is,  as  it  has  been  for  centuries,  almost  wholly  a  matter  of 
price  and  adaptabihty  to  use.  The  question  that  the 
buyer  asks  is,  how  cheap  is  the  garment  and  does  it  fit. 


2i8  LAW  AND  ORDER  IN  INDUSTRY 

The  result  of  this  is  a  demand  on  the  part  of  the  public 
for  "bargains"  and  inevitably  leads  to  an  attitude  on  the 
part  of  the  retailer  of  entire  indifference  to  the  condi- 
tions or  surroundings  under  which  the  garment  is  made. 
The  most  scrupulous  buyer  of  a  department  store  must 
shut  his  eyes  to  the  environment  under  which  the  gar- 
ment is  made.  He  concerns  himself  solely  with  the 
question  of  price  and  the  style,  texture  and  work  in  the 
product.  Whether  it  contain  germs  of  disease,  or  has 
injured  the  operative  in  the  making,  must  concern  him 
not  at  all.  The  result  is  pressure  upon  the  manufacturer 
from  the  consumer's  end — to  manufacture  as  cheaply  as 
possible,  regardless  of  the  conditions  under  which  the 
worker  operates,  and  from  the  same  consuming  pubHc 
pressure  from  another  direction — higher  wages  and 
shorter  hours  for  the  worker.  There  is  justice  in  the  plea 
of  the  erdightened  manufacturer  that  he  is  being  squeezed 
between  two  opposing  forces  and  that  he  is  penahzed 
whenever  he  attempts  to  raise  conditions.  The  remedy 
would  seem  to  be  at  hand  if  all  of  the  parties  would 
agree  to  it,  that  is,  the  employer,  the  employee  and  the 
pubHc.  It  is  this.  Whenever  complete  and  regular 
inspection  of  an  industry  is  under  way  by  all  three  par- 
ties, as  in  the  cloak  industry,  and  certificates  are  issued 
to  shops  maintaining  adequate  standards,  the  chain  of 
evidence  should  be  carried  one  link  farther — the  garment 
itself  should  be  certified  by  the  Board,  so  that  the  con- 
sumer will  know  what  garment  is  made  under  "Protocol" 
conditions  and  what  is  not.  An  extensive  advertising 
campaign,  conducted  by  both  parties,  would  inevitably 
educate  the  pubHc  to  a  realization  of  its  responsibility 
for  the  maintenance  of  unsanitary  conditions.  The  re- 
sponsibility from  consumer  to  producer  would  be  made 
direct  and  real  and  could  not  be  evaded.    A  label  on  each 


THE  WHITE  PROTOCOL  LABEL  219 

garment  would  furnish  the  purchaser  with  unmistakable 
evidence  of  its  conformance  or  non-conformance  with 
the  standards  of  Hving  maintained  by  the  best  in  the 
industry.  Already  in  the  cloak  industry,  the  union  is 
making  a  campaign  throughout  the  country  for  the 
exclusion  from  the  industry  of  what  is  called  "Non- 
Protocol"  cloaks;  that  is  to  say,  for  the  exclusion  of 
garments  made  in  factories  that  have  not  come  under  the 
Protocol.  This  work  is  ineffective  now  because  there  is 
no  way  of  furnishing  the  consumer  with  prompt  and 
satisfactory  evidence  of  the  facts  concerning  each  gar- 
ment. The  retailer  to-day  is  not  called  upon  to  distin- 
guish between  "Protocol"  cloaks  and  "Non-Protocol" 
cloaks.  Looking  at  the  situation  critically,  it  would  seem 
that  the  work  of  controlling  the  label  is  no  more  difficult 
than  the  work  of  controlling  the  shop.  It  is  a  mere  exten- 
sion of  the  principle  of  certification.* 

The  idea  gained  favor  with  manufacturers  and  union 
leaders.  When  it  was  first  presented,  it  met  with  the 
general  approval  of  the  leading  cloak  manufacturers. 
It  was  opposed  by  the  union  leaders.  Gradually,  they 
began  to  see  its  value,  until  in  1913,  when  in  drawing 
the  Protocol  in  the  dress  and  waist  industry,  I  secured 
the  acceptance  of  both  sides  to  the  following: 

To  make  more  effective  the  maintenance  of  sanitary 
conditions  throughout  the  industry,  to  insure  equality  of 
minimum  standards  throughout  the  industry,  and  to 
guarantee  to  the  public  garments  made  in  the  shops 
certificated  by  the  Board  of  Sanitary  Control,  the  parties 

*  "  Control  of  Sanitary  Standards,"  published  by  National  Conference 
of  Charities  and  Corrections,  19 12. 


220  LAW  AND  ORDER  IN  INDUSTRY 

agree  that  there  shall  be  instituted  in  the  industry  a 
system  of  certificating  garments  by  a  label  to  be  affixed 
to  the  garment.  Recognizing  the  difficulties  of  working 
out  the  details  of  such  a  plan  at  this  time,  but  believing 
that  the  plan  has  been  sufficiently  developed  and  con- 
sidered in  the  Cloak  Industry,  they  believe  that  a  com- 
plete plan  can  be  worked  out  in  the  Dress  and  Waist 
Industry  within  a  year.  To  this  end  each  party  agrees 
to  cooperate  to  the  full  extent  of  its  power  in  the  formu- 
lation and  effectuation  of  a  system  for  the  certification  of 
garments  adequately  safeguarding  the  employers,  the 
workers,  and  the  consuming  public* 

In  191 5,  the  Board  of  Arbitration  in  the  Cloak  In- 
dustry, reviewing  the  difficulties  of  that  industry,  and 
mindful  of  the  necessity  for  equal  enforcement  of  stand- 
ards through  the  industry,  said: 

We  are  deahng  specifically  with  the  problems  of  only  a 
part  of  the  garment  trade;  but  your  problems  are  in  large 
measure  the  problems  of  all  industry.  You  are  leaders  in 
the  attempt  to  work  out  these  problems,  and  are  entitled 
not  only  to  the  sympathetic  consideration,  but  to  the 
help  of  the  rest  of  the  community.  Protocol  conditions 
are  conditions  which  the  community  desires  to  have 
established  generally.  There  are  scarcely  any,  whether 
employers  or  employees  or  consumers,  who  do  not  wish  to 
accomplish  exactly  what  those  who  are  in  this  industry 
are  seeking  to  accomplish  by  way  of  bettering  the  rela- 
tions of  employer  and  employees.  Some  method  ought 
to  be  devised  of  enlisting  the  cooperation  of  the  com- 
munity in  the  great  and  difficult  task  of  working  out 

*  Protocol  of  Peace  in  the  Dress  and  Waist  Industry,  January  18, 1913. 


THE  WHITE  PROTOCOL  LABEL  221 

these  problems.  The  Protocol  label  has  been  suggested 
as  one  of  the  means  of  accomplishing  such  cooperation. 
However  valuable  the  suggestion,  it  is  obvious  that  its 
practical  application  is  a  matter  of  great  but  not  of 
insuperable  difficulty.* 

The  label  has  not  yet  been  established.  It  waits  for 
public  sentiment.  It  will  not  bring  the  millennium.  Its 
efficacy  will  depend  almost  entirely  upon  the  consuming 
public.  If  the  women  of  the  country  would  to-morrow 
with  one  voice  say,  "We  will  not  wear  clothes  that  are 
made  under  unsanitary  conditions  and  unless  we  are  cer- 
tain that  the  workers  who  have  them  receive  proper 
wages  and  fair  treatment,"  they  would  accomplish  in 
twenty-four  hours  a  bloodless  revolution.  They  would, 
by  this  one  act,  save  enough  waste  in  strikes  and  lock- 
outs, ultimately  to  reduce  the  cost  of  their  garments  and 
would,  at  the  same  time,  raise  working  conditions  higher 
than  all  the  state  and  local  Factory  and  Health  Boards 
have  done  in  twenty  years.  No  manufacturer  could  af- 
ford to  do  without  the  label — no  department  store  could 
sell  any  other  than  labelled  garments.  We  should  be  cer- 
tain, too,  that  neither  association  nor  union  would  be  un- 
reasonable or  arbitrary  or  anarchical.  The  public  would 
be  represented  and  would  bring  pressure  to  bear  where 
it  was  justified.  The  Board  of  Arbitration  would  have  a 
sheriff,  and  the  withdrawal  of  the  label  (after  fair  hearing) 

*  Decision  of  Board  of  Arbitration,  January  21,  19 15. 


222  LAW  AND  ORDER  IN  INDUSTRY 

would  be  sufficient  enforcement  of  a  decision,  and  would 
be  as  effective  against  the  non-association  employer  as 
association  discipline  is  now  effective  against  the  associa- 
tion member. 

In  Chapter  VII,  in  reviewing  the  Chicago  experience, 
we  set  down  the  following  tentative  hypothesis: 

The  consumer  is  an  important  factor  in  the  problem. 
Of  course,  care  must  be  taken  to  prevent  fraud  in  the 
use  of  the  label,  and  to  see  to  it  that  it  acquires  its  full 
value  through  thorough  and  systematic  advertising.  If 
it  received  the  support  of  the  women  of  the  country 
the  additional  fee  for  each  label  would  bring  in  more 
than  enough  to  pay  for  all  the  advertising  and  the  main- 
tenance of  the  machinery  of  administration. 

To-day  there  is  no  machinery  for  enforcing  standards 
throughout  the  entire  industry.  The  shop  strike,  the 
general  strike  is  futile. 

In  the  August  Garment  Worker  (immediately  follow- 
ing the  adoption  of  the  recommendations  of  the  Mayor's 
Council)  appears  the  following: 

EQUALIZING   CONDITIONS    THROUGHOUT   THE    COUNTRY 

The  need  of  equalizing  conditions  throughout  the 
country  is  as  great  as  ever,  and  President  Schlesinger 
intends  forthwith  to  start  on  an  organizing  tour  to 
Middle  Western  centers  of  our  industry  to  supervise 
urgent  movements  for  better  conditions.* 

*  The  Ladies'  Garment  Worker,  August,  i9is»  PP-  S>  6. 


THE  WHITE  PROTOCOL  LABEL  223 

Who  should  be  against  the  Protocol  label?  Those  who 
believe  in  the  power  or  force  theory — those  unionists 
and  those  employers  who  each  have  the  same  fear — the 
fear  of  the  consequence  of  joining  permanently  in  the 
establishment  of  a  joint  asset  and  who  prefer  "the  good 
old  "  pre-Protocol  days?  Of  course,  there  may  be  de- 
partment store  managers  so  short-sighted  as  to  fear  the 
consequences  to  them  of  this  control  of  the  industry 
by  the  worker,  the  manufacturer  and  the  consumer. 
But  the  wise  and  far-sighted  department  store  manager 
will  think  differently.  It  took  a  long  time  for  adver- 
tisers of  meritorious  wares  to  reaHze  that  telling  the 
truth  had  a  commercial  value.  It  has  taken  a  long  time 
for  advertising  mediums  to  realize  that  publishing  truth- 
ful advertisements  was  of  commercial  value.  Now  we  see 
a  New  York  daily  building  up  its  entire  advertising  power 
through:  first,  its  guarantee  of  the  complete  truthfulness 
of  representations  made  in  its  columns  by  advertisers, 
and  secondly,  by  a  campaign  generally  against  fraudu- 
lent advertising.  Another  is  specializing  in  foods,  giving 
the  strength  of  its  approval  to  such  as  stand  the  test 
of  its  own  investigation  and  attacking  those  who  fall 
below  standard.  The  first  department  store  head  who 
will  thoroughly  realize  the  commercial  value  of  squarely 
meeting  the  demand  of  the  consumer  for  garments  made 
under  sanitary  and  fair  conditions,  will  secure  a  reputa- 
tion and  standing  that  will  put  him  in  advance  of  his 


224  LAW  AND   ORDER  IN  INDUSTRY 

competitor.  The  first  mail-order  house  that  offers  to 
the  country  shirt  waists  certified  to  by  representatives 
of  the  workers,  the  employers  and  the  consumers  as 
having  been  made  under  sanitary  and  fair  conditions, 
win  establish  a  tremendously  valuable  clientele.  A  little 
specialty  house  in  the  retail  dry  goods  district  of  New 
York  found  it  to  advantage  to  put  in  its  advertisements: 
"A  member  of  the  Dress  and  Waist  Manufacturers'  As- 
sociation.   Garments  made  under  sanitary  conditions." 

The  White  Protocol  label  is  more  than  a  consumer's 
label.  It  is  a  producer's  label.  If  it  be  true  that  more 
than  seventy-five  per  cent  of  the  garments  are  worn  by 
working  men  and  working  women,  are  they  not  interested 
in  the  maintenance  of  sanitary  and  fair  conditions  of 
work?  It  is  more  than  the  union  label,  for  the  reason 
that  it  is  not  a  dispensation  by  the  union,  based  upon  a 
determination  made  by  the  union. 

Here,  then,  is  something  to  consider  and  weigh.  If  the 
public  is  interested  in  preserving  peace  in  industry  and 
securing  the  welfare  of  working  people,  why  should  it 
not  make  its  great  power  effective?  The  Chicago  brand 
gave  to  the  clothing  concern  the  power  to  meet  its  com- 
petitors effectively.  Why  not  create  a  brand  that  con- 
sumers will  award  to  those  who  observe  the  law  and  thus 
make  society's  aim  square  with  the  aim  of  legitimate 
business? 


CHAPTER  XXI 

A  FEDERAL   INDUSTRIAL   COUNCIL 

Study  of  the  proceedings  and  report  of  the  Industrial 
Council  of  Great  Britain*  led  me  to  the  conviction  that 
at  the  root  of  the  difficulty  in  both  the  making  and  ob- 
servance of  joint  agreements  lay  the  problem  of  equal 
enforcement  of  standards  throughout  the  industry.  I 
found  that  the  Council  had  considered  various  methods 
proposed,  and  that  on  the  whole,  the  best  opinion  seemed 
to  be  (as  quoted  on  p.  202)  in  favor  of  extending  the 
standards  by  law  to  cover  the  entire  industry.  J.  Ram- 
sey MacDonald  in  191 2  introduced  in  Parliament  a  Bill 
(Appendix  E)  covering  the  Port  of  London,  which  pro- 
vided that  where  an  agreement  was  "come  to  volunta- 
rily" by  employers  and  workmen,  and  covered  sufficient 
numbers,  the  standards  of  wages,  or  hours,  or  conditions 
of  employment  should  be  "the  implied  terms  of  every 
contract  for  employment  of  a  workman  in  the  Port  of 
London."  The  bill,  though  hardly  in  form  to  meet  the 
requirements  of  our  Constitution,  furnished  the  basis  for 
a  tentative  recommendation  I  submitted  to  the  United 

*  Bulletin  133,  U.  S.  Department  of  Labor. 
225 


226  LAW  AND  ORDER  IN  INDUSTRY 

States  Industrial  Relations  Commission  in  1914  (Ap- 
pendix F) . 

It  seemed  to  me  that  if,  under  the  jurisdiction  of  Con- 
gress over  interstate  commerce,  we  could  create  a  national 
industrial  board,  constituted  of  leading  trades  unionists, 
employers  and  public  men  and  women,  we  should  find  a 
method  for  applying  intelligently  and  constantly  to  trade 
agreements  the  force  of  public  opinion  and  at  the 
same  time  utilize  Federal  power  in  making  such  agree- 
ments "voluntarily  come  to"  binding  upon  the  unscrupu- 
lous and  illegitimate  minority  employer.  Such  a  board 
could  at  any  time,  at  the  instance  of  either  party,  review  the 
conduct  of  both  parties  and  make  findings  based  thereon. 
If  the  agreement  were  in  the  public  interest  and  the 
Board  so  certified,  its  certificate  could  be  made  presump- 
tive evidence  of  good  faith  protecting  both  parties  against 
harassing  litigation.  In  addition,  the  failure  of  either 
an  employers'  association  or  a  trades  union  to  observe 
the  agreement  would  result  in  pubHc  disapproval  and  be 
sufficient  ground  for  refusal  to  approve  subsequent  agree- 
ments. The  trades  union  or  employers'  association  which 
observed  treaties  would  be  encouraged,  and  the  other 
kind  gradually  driven  out.  In  addition,  to  make  the 
standards  "voluntarily  come  to"  of  a  clear  majority 
of  the  industry  on  both  sides  binding  upon  all  in  the  in- 
dustry and  to  do  it  by  law,  instead  of  by  force — after 
full  opportunity  for  hearing  to  the  minority — seemed  to 


A  FEDERAL  INDUSTRIAL  COUNCIL  227 

be  a  more  rational  way  of  getting  and  maintaining  de- 
cent standards.  As  to  hours  of  labor,  such  action  by  the 
Board  would  be  in  the  nature  of  legislation  fixing  con- 
ditions of  labor,  and  as  to  minimum  standards  of  wages 
would  be  in  nature  the  same  as  the  action  of  minimum 
wage  boards.  As  to  the  constitutionality  of  such  an 
act  with  reference  to  wage  standards  for  men,  though  I 
am  familiar  with  the  decisions  adverse,  I  believe  that 
even  here  the  time  is  coming  when  this  kind  of  legislation 
will  be  upheld.  (Although  the  courts  have  sought  to 
distinguish  between  men  and  women  upon  the  ground  of 
the  physical  differences  in  sex,  there  seems  to  me  to  be 
no  inherently  sound  legal  reason  for  denying  to  men  the 
same  protection  that  is  granted  to  women.*)  Since  the 
recommendation  was  made,  there  has  been  created  the 
Federal  Reserve  Board,  with  broad  supervisory  powers 
over  our  banking  institutions,  and  a  Trade  Commission 
with  similar  supervision  over  trade  agreements.  We 
have  already  come  to  the  time  when  we  freely  acknowl- 
edge the  right  of  the  entire  country  to  insist  that  no  part 
shall  break  down  through  interstate  commerce  the  living 
standards  necessary  for  the  protection  of  the  whole 
people.  This  is  the  basis  of  our  Federal  pure  food  and 
health  laws,  and  we  shall  ultimately  apply  the  same 
reasoning  to  laws  regulating  the  working  conditions  of 

*The  principles  of  "  Fatigue  and  Efficiency  "  (Goldmark)  apply  to 
men  as  well  as  to  women. 


228  LAW  AND  ORDER  IN  INDUSTRY 

labor.  If  we  give  the  principal  factors  in  each  industry, 
i.  e.,  the  majority  employers  and  the  majority  workers  the 
first  say,  by  permitting  them  to  come  to  joint  agreements 
voluntarily,  and  then  guarantee  them  against  the  un- 
dermining of  standards  by  unscrupulous  competitors, 
we  shall  be  rendering  the  entire  country  a  real  service. 
We  shall  hasten  the  day  of  industrial  welfare  as  well 
as  industrial  peace.  The  outline  submitted  to  the  In- 
dustrial Relations  Commission  is  not  submitted  here  as  a 
final  plan,  nor  is  it  the  purpose  of  this  chapter  to  make 
unmediate  propaganda  for  it.  I  am  conscious  that  we 
are  a  long  way  ofif  from  an  exact  piece  of  legislation  upon 
the  subject.  But  the  realization  that  it  took  us  more 
than  half  a  century  to  work  out  sound  currency  legisla- 
tion makes  me  confident  that  some  day  there  will  come 
Paul  Warburgs  into  industry  who  will  find  the  means  of 
preventing  the  losses  of  industrial  warfare  as  in  the  enact- 
ment of  the  Federal  Reserve  Act  we  have  prevented  the 
losses  of  financial  panics.  The  suggestion  is  reprinted 
for  reflection.  If  it  inspires  others  to  think  in  the  same 
general  direction,  it  will  have  accomplished  its  purpose. 

We  must  not  rest  content  with  present  alternatives. 

We  must  invent  new  ways.  If  we  have  not  yet  found 
the  right  ones,  we  must  try  until  we  do  find  them.  But 
we  must  not  wince  if  the  facts  as  we  face  them  are  not 
wholly  to  our  liking. 


CHAPTER  XXII 

VISION  AND   EFFORT 

The  man  of  reflection,  detached  from  interest  or  ac- 
tivity in  a  given  social  or  political  situation,  has  the  ad- 
vantage of  long-range  perspective  and  by  virtue  of  his 
detachment  and  disinterestedness  may  be  a  safe  guide. 
But  if  the  man  of  action  pays  the  penalty  of  short  range 
vision,  he  at  least  has  a  firmer  base  in  the  intimate  knowl- 
edge of  the  factors  of  the  situation.  The  true  combina- 
tion for  statesmanship  is,  of  course,  to  be  found  in  an 
alignment  of  both. 

Of  the  students  of  industrial  problems,  those  who 
speak  with  the  authority  of  deep  reflection  agree  that 
progress  hes  in  the  direction  of  greater  industrial  de- 
mocracy. John  Graham  Brooks,  after  a  review  of  Ameri- 
can Syndicalism,  writes  that  the  remedy  for  lawlessness 
and  the  way  to  peace  and  welfare  of  all  concerned  is  in 
"the  open,  declared  purpose  to  admit  labor  to  manage- 
ment first  at  safe  and  possible  points" — note  the  quali- 
fying words — "with  all  that  this  means  of  banished 
secrets;  to  admit  it  fearlessly  and  with  no  reserves  as 
far  as  labor  proves  Us  fitness;  *  we  then  and  there  connect 

.  *  Italics  ours. 
229 


230  LAW  AND  ORDER  IN  INDUSTRY 

ourselves  with  the  cooperative  regime."  This,  he  says, 
"does  not  close  the  fist,  it  opens  the  arms."  And  to 
adopt  this  poUcy  of  including  labor  "in  the  control  of 
business"  requires  not  only  that  we  give  it  "every 
opportunity  of  training  to  this  end"  but  will  require 
"the  severe  schooling  of  a  century."  I  agree  with  him 
in  his  estimate  of  time.  "But,"  says  Professor  Brooks, 
"every  strong  man  who  openly  sets  his  face  that  way, 
who  tries  consentingly  and  forbearingly  to  prove  the 
policy  wise  is  the  helper  to  whom  we  look."  * 

Two  other  clever  students.  Englishmen  (Watney  and 
Little)  write  in  a  book  entitled  "Industrial  Warfare"  that 
"Industrial  unrest  cannot  be  treated  as  an  isolated  irre- 
sponsible manifestation."  True.  ..."  it  assumes  spe- 
cific forms  according  to  its  local  conditions,  and  more 
particularly  to  its  method  of  treatment  by  those  who  have 
the  power  to  influence  it."  So  we  find  in  the  experiences 
dealt  with  in  this  book.  "Nothing,"  say  they  in  England, 
"can  do  more  harm  to  the  body  politic  than  a  poHcy 
of  unreflecting  and  intractable  hostihty  from  above  to  the 
impulses  and  aspirations  from  below;  you  cannot  with 
safety — and  the  truism  is  so  apt  that  it  barely  needs 
apology — 'sit  on  the  safety  valve.'"  Quite  right. 
Now  observe  the  complementary  thought:  "At  the 
same  time,  nothing  can  do  less  harm  to  it  than  the  policy 
of  unreflecting  and  uncompromising  hostility  from  below 
*  John  Graham  Brooks:  "American  SyndicaUsm,"  p.  252. 


VISION  AND   EFFORT  231 

to  the  just  claims  and  due  recognition  of  the  great 
directing  and  controlling  influences  in  the  business  of  the 
country,  provided  the  latter  realize  that,  with  the  devel- 
opment of  thought  and  the  advancement  in  the  popular 
ideals  of  happiness  and  comfort,  has  come  a  greater  and 
legitimate  desire  on  the  part  of  the  worker  for  better 
all-round  opportunities  for  both  himself  and  his  class."* 

Mr.  Brandeis  certainly  has  had  opportunity  for  both 
long  and  short  range  observation.  Called  as  an  expert 
before  the  Industrial  Relations  Commission,  he  expressed 
the  opinion  that  industrial  unrest  never  could  be  re- 
moved, "and  fortunately  never  can  be  removed,  by 
mere  improvement  of  the  physical  and  material  condi- 
tion of  the  working  man";  that  we  must  bear  in  mind 
all  the  time  that  no  matter  how  much  one  may  wish 
for  material  improvement  and  must  desire  it  for  the  indi- 
vidual's comfort,  ^'we  are  a  democracy"  and  therefore,  ^'we 
must  have,  above  all  things,  men."  And,  accordingly,  he 
believes  that  it  is  towards  the  development  of  manhood 
that  any  industrial  or  social  system  must  be  directed. 
Not  only  are  we  committed,  in  our  country,  Mr.  Brandeis 
told  the  Commission,  to  "social  justice  in  the  sense  of 
avoiding  things  which  bring  suffering  and  harm  and  un- 
equal distribution  of  wealth;  but  we  are  committed 
primarily  to  democracy,  and  the  social  justice  to  which 
we  are  headed  is  an  incident  of  our  democracy,  not  an 

*  Charles  Watney  and  James  A.  Little:  "  Industrial  Warfare,"  pp.  8, 9. 


232  LAW  AND  ORDER  IN  INDUSTRY 

end  itself.  It  is  the  result  of  democracy,  but  democracy 
we  must  have."  *  Therefore,  said  Mr.  Brandeis,  we  must 
recognize  industrial  democracy  "as  the  end  to  which  we 
are  to  work."  And  that  means  to  Mr,  Brandeis  what  it 
means  to  Professor  Brooks,  "the  problems  are  not  any- 
longer,  or  to  be  any  longer,  the  problems  of  the  employer. 
The  problems  of  his  business — it  is  not  the  employer's 
business."  f  This  same  thought  was  in  the  minds  of  a 
group  of  ministers  and  leading  citizens  of  New  York,t 
who  said  to  a  group  of  (men's,  not  women's)  clothing 
manufacturers  in  191 2  who  refused  to  confer  or  arbitrate 
with  the  union:  "You  seem  to  think  that  your  particular 
business,  and  the  capital  you  have  therein  invested, 
should  be  your  main  consideration;  whereas  the  public, 
while  desiring  your  welfare,  insists  also  that  you  shall 
take  such  steps  as  are  necessary  to  secure  conditions  which 
are  now  recognized  as  indispensable  in  those  industries 
where  employers  and  employees  are  at  peace.  Such 
being  the  present  state  of  the  public  mind,  is  it  not  for 
your  own  interest  to  be  more  forward  in  taking  such 
steps  as  the  public  now  expects  of  you?  "  §  Mr.  Brandeis 
said  also — doubtless  influenced  by  his  experience  as 

*  Italics  ours. 

t  Report  of  Federal  Commission  on  Industrial  Relations  (1915), 
pp.  83-84. 

J  Drs.  George  William  Douglas,  Frank  Oliver  Hall,  George  U.  Wen- 
ner,  Henry  E.  Cobb,  John  Haynes  Holmes,  Rabbis  Samuel  Schulman 
and  Stephen  S.  Wise. 

§  Evening  Post,  February  20,  19 13. 


VISION  AND   EFFORT  233 

chairman  of  the  Arbitration  Board  in  our  industry — 
"The  union  cannot  shift  upon  the  employer  the  respon- 
sibility for  the  conditions,  nor  can  the  employer  insist 
upon  solving,  according  to  his  will,  the  conditions  which 
shall  exist;  but  the  problems  which  exist  are  the  problems 
of  the  trade;  they  are  the  problems  of  employer  and 
employee."  *  He  was  repeating  here  what  he  had  fre- 
quently said  as  chairman  of  our  Board  of  Arbitration. 
The  ministers  and  leading  citizens  said  to  the  clothing 
manufacturers:  "And  why  should  you  not  organize 
also  a  proper  system  for  settling  the  daily  questions  be- 
tween your  workers  and  yourselves  in  a  manner  which  is 
thoroughly  modern,  and  takes  cognizance  of  the  trade 
conditions,  both  here  and  in  competing  markets,  which 
must  be  considered  in  order  to  preserve  and  develop  your 
business  in  this  city,  of  which  all  true  citizens  desire  to 
be  proud?  And  further,  when  questions  arise  which  are 
too  large  to  be  settled  by  this  method  in  your  own  shops, 
why  should  you  not  arrange  to  refer  them  to  a  board 
operating  somewhat  on  the  arbitration  system  of  the 
Chamber  of  Commerce?  "  f 

Thus  is  set  in  apparent  conflict  the  view  of  the  man  of 
vision  with  the  man  of  dally  business.  The  man  of 
vision  sees  not  in  the  remote  distance,  but  in  the  im- 
mediate present  the  approach — the  inevitable  approach 

*  Report  of  Federal  Commission  on  Industrial  Relations  (1915),  p.  84. 
^Evening  Post,  February  20,  1913. 


234  LAW  AND   ORDER  IN  INDUSTRY 

of  industrial  democracy.  The  man  of  daily  business 
sees  ahead  only  the  shoals  and  rocks  upon  which  industry 
may  be  wrecked.  How  shall  we  reconcile  them?  For 
reconciled  they  must  be  if  progress  is  to  be  made.  Rec- 
onciliation of  these  views  is  statesmanship  in  industry. 
It  was  Lloyd  George's  job  in  England — a  thankless  one 
at  best.  We  shall  be  obliged  to  record  repeated  failure 
before  we  succeed. 

Writing  in  1866  (just  after  our  Civil  War),  Lord  Acton, 
realizing  that  "the  experience  of  the  Americans  is  nec- 
essarily an  impressive  lesson  to  England,"  wondered 
whether  the  Americans  would  be  successful  in  revers- 
ing "the  verdict  of  history,"  "that  that  which  ancient 
Rome  and  modern  France  attempted  and  failed  to  ac- 
complish is  really  impossible;  that  Democracy,  to  be 
consistent  with  liberty,  must  subsist  in  solution  and  com- 
bination with  other  qualifying  principles,  and  that  complete 
equality  is  the  ruin  of  liberty,  and  very  prejudicial  to  the 
most  valued  interests  of  society,  civilization  and  religion^  * 

*  If  they  (the  Americans)  could  demonstrate  that  to  be  possible  which 
was  deemed  a  chimera,  because  it  is  contradicted  by  the  experience  of 
ages, — if  they  showed  us  that  the  objects  aimed  at  by  our  political  and 
social  system  may  be  enjoyed  still  more  amply  without  the  penalty 
which  Europe  has  always  paid,  in  the  shape  of  so  much  iniquity  and 
so  much  suffering,  by  irresponsible  authorities,  sanguinary  wars,  and 
wanton  injury,  in  the  oppression  of  class  by  class,  of  race  by  race,  and  of 
religion  by  religion, — in  the  elaborate,  deliberate,  intentional  degrada- 
tion of  the  weaker  party,  for  reasons  of  state,  or  religious  zeal,  or  by  the 
pride  of  blood,  or  by  the  blind  and  resistless  action  of  superior  wealth 
and  force — if  they  could  exhibit  to  the  world  the  spectacle  of  a  country 


VISION  AND   EFFORT  235 

In  j&fty  years  the  idea  of  political  democracy  has  found 
deeper  roots  in  England  than  Lord  Acton  ever  expected. 
In  the  Far  East,  in  China,  political  democracy  as  an  ideal 
takes  root  but  fails  to  hve.  If  recent  experiences  have 
taught  us  anything,  it  is  the  lesson  that  to  apply  ideals, 
without  taking  account  of  the  actual  facts,  spells  failure. 
Our  own  American  political  scientist,  called  as  expert 
adviser  by  the  Chinese  Government,  says:  "China's 
history  and  traditions,  her  social  and  economic  conditions, 
her  relations  with  foreign  Powers,  all  make  it  probable 
that  the  country  would  develop  that  constitutional 
government  which  it  must  develop  if  it  is  to  preserve  its 
independence  as  a  State  more  easily  as  a  monarchy  than 
as  a  republic."  *  But  we  need  not  go  to  China  for  our 
lessons  in  the  failures  of  democracy.  We  have  failed  in 
municipal  politics  and  we  know  that  we  have  failed.  We 
are  gradually  learning  to  understand  why  we  failed.  We 
have  failed  in  state  politics.  Our  late  senior  Senator  f  in 
his  keen  analysis  of  the  effect  of  "invisible  government" 
upon  state  management  furnished  no  new  information 

as  extensive  as  Russia,  as  secure  from  aggression  as  France,  as  intellec- 
tual as  Germany,  as  free  and  as  obedient  to  law  as  Great  Britain,  cursed 
with  no  restrictions  on  personal  freedom,  without  fleets  or  armies,  with- 
out pauperism  or  national  debt, — if,  in  short,  America  could  give  the 
light  without  the  shade  of  political  Ufe,  then  I  believe  that  the  venerable 
institutions  of  European  polity  would  go  down  before  that  invincible 
argument.  Lord  Acton:  "Historical  Essays  and  Studies,"  Chapter  IV; 
"The  Civil  War  in  America,"  pp.  125,  126. 

*  Prof.  Frank  L.  Goodnow:  New  York  Sun,  September  27,  1915. 

t  Elihu  Root:  Constitutional  Convention,  New  York,  1915. 


236  LAW  AND  ORDER  IN  INDUSTRY 

to  the  reformer  who  has  actual  experience  in  politics. 
Frankly  facing  all  of  these  known  failures  in  political 
democracy,  we  go  on  with  our  faith  as  we  did  before 
Lord  Acton  wrote,  and  as  we  did  afterwards — some- 
times we  go  on  with  but  Stevenson's 

Half  of  a  broken  hope  for  a  pillow  at  night 

That  somehow  the  right  is  the  right 

And  the  smooth  shall  bloom  from  the  rough. 

With  our  failures  in  industrial  democracy,  we  act  dif- 
ferently. If  the  scheme  does  not  work  one  hundred  per 
cent  perfect,  we  abandon  our  whole  faith.  Why?  There 
is  a  difference.  We  accept  political  democracy  as  some- 
thing fixed;  something  here  and  now,  never  to  be  aban- 
doned as  an  ideal  and  to  be  wrestled  with  in  practice;  to 
be  worked  out  at  whatever  cost;  and  we  accept  industrial 
democracy  as  nothing  but  a  dream  of  the  future.  We 
have  no  fixed  public  policy  on  the  subject.  Not  until 
individual  men  are  thrown  into  the  vortex  of  a  huge 
industrial  conflict — until  they  grip  the  very  vitals  of 
industry — do  they  realize  the  nearness  of  a  new  order  of 
industrial  society  and  their  utter  unpreparedness  for  it. 
The  average  employer  knows  nothing  about  "industrial 
democracy."  To  him  it  spells  nothing  but  Socialism, 
with  a  capital  "S."  "Let  everybody  mind  his  own  busi- 
ness and  I  will  mind  mine,"  says  he.  The  intrusion  of 
social  workers,  literary  gentlemen,  religious  leaders,  into 


VISION  AND  EFFORT  237 

his  labor  difficulties,  is  to  him  utterly  uncalled  for.  "We 
know  our  business  better  than  these  ladies  and  gentlemen. 
Why  don't  they  leave  us  alone?"  The  truth  is  that  the 
employer  who  knows  nothing  and  cares  less  about  ''in- 
dustrial democracy, "  and  sticks  to  it,  is  the  most  con- 
sistent and  logical  of  all.  He  starts  with  but  one  simple 
object — that  is,  profits — and  he  persists.  Labor,  like 
material,  is  for  him  regulated  by  the  "law  of  supply  and 
demand."  If  he  drives  hard  bargains  with  his  customers, 
he  sees  no  reason  for  not  doing  the  same  with  his  workers. 
When  the  workers  organize  into  a  union  it  is  against  his 
interest.  It  gives  them  a  power  with  which  to  oppose 
his  power.  Therefore,  quite  consistently,  he  turns  his 
attention  to  preventing  the  formation  of  such  an  organ- 
ization. And  if  spies  or  law  breaking  are  necessary  to 
accomplish  the  result,  why,  of  course,  he  must  not  be 
squeamish  about  it.  It  is  the  employer  of  imagination, 
of  education,  who  carries,  in  industry  as  elsewhere,  the 
pains  of  birth  in  bringing  forth  new  ideas  and  new  in- 
stitutions. For  example,  once  he  accepts  the  principle 
that  workers,  like  employers,  have  the  right  to  organize 
and  deal  collectively,  he  is  gone — as  we  have  seen  both 
in  Chicago  and  in  New  York.  If  he  starts  forward,  he 
can  never  turn  back,  no  matter  what  the  cost.  And 
he  will  find  cold  comfort  in  much  of  the  company  of  his 
colleagues. 
Recent  studies  are  to  the  effect  that  the  savage  is  our 


238  LAW  AND  ORDER  IN  INDUSTRY 

mental  equal.  "One  may  display  as  much  intelligence 
in  tracking  a  kangaroo  through  the  bush  as  in  solving  a 
problem  in  algebra."  *  The  difference  between  the 
civilized  man  and  the  savage  is  in  the  imagination, 
"Civilized  races  are  progressive  and  their  systems  of 
thought  and  life  are  changing,  but  the  savage  prefers  to 
remain  fixed  in  the  culture  of  a  long  past  age,  which, 
conserved  by  the  inertia  of  custom  and  sanctified  by 
religion,  holds  him  helpless  in  its  inexorable  grasp.  Im- 
agination rules  the  world,  and  the  world  to  the  savage  is 
dominated  by  a  nightmare  of  tradition.  .  .  ."  When  a 
man  of  imagination  steps  in  among  the  Fijis,  the  wonder 
is  that  they  do  not  eat  him  alive.  It  is  the  man  of 
imagmation  in  industry  whom  we  must  help,  whose  bur- 
dens we  must  lighten,  for  upon  him  depends  much  of  the 
progress  to  be  made  in  the  immediate  future.  Let  us 
then  frankly  admit  that  we  are,  in  truth,  unprepared  for 
the  new  order  of  industry.  Let  us  seek,  so  far  as  prac- 
ticable, to  avoid  repetition  in  industry  of  the  costly 
failures  of  democracy  in  poHtics.  We  do  not  need  the 
lesson  of  far-off  China  to  teach  us.  It  does  not  pay  in  the 
long  run  to  travel  faster  than  existing  economic  and  psycho- 
logical conditions  will  warrant. 

If  the  United  States  Commission  on  Industrial  Re- 
lations had  but  given  us  a  full  and  complete  survey  of 
the  experiences  of  this  country  in  collective  bargaining 

*  "History  of  Fiji,"  Dr.  A.  G.  Mayer,  Popular  Science  Monthly,  1915. 


VISION  AND   EFFORT  239 

to  match  the  report  of  the  Industrial  Council  of  Great 
Britain  upon  the  same  subject,  we  should  have  had  a 
larger  background  of  experience  for  our  perspective. 
However,  the  experiences  reviewed  in  these  pages  may 
at  least  contribute  an  approximate  inventory  of  failure 
and  success  in  one  difficult  and  complex  industry  from 
which  we  may  learn.   Let  us  enumerate  roughly : — 

The  General  Strike  eliminated. 

The  "Closed  Shop"  eliminated. 

The  judicial  and  legislative  method  of  determining 
controversy  accepted. 

The  value  of  organization  on  both  sides  appreci- 
ated. 

Better  sanitary  and  working  standards. 

Success  in  joint  effort  where  the  effort  is  whole-hearted. 
Failure  where  it  is  not. 

Success  in  applying  new  institutions  based  upon  Law 
and  Order. 

Elimination  of  the  "right  to  the  job." 

Recognition  of  "efl&ciency  and  economy  as  a  duty  of 
worker  as  well  as  employer  in  industry." 

Failure  to  equalize  competitive  labor  conditions. 

Failure  to  eliminate  sporadic  shop  strikes. 

Failure  to  secure  whole-hearted  and  mutual  endorse- 
ment of  the  plan  by  both  organizations. 

Li  1910  the  cloak  industry  of  New  York  fights  out  the 
"closed  shop "  issue.    The  modus  vivendi  of  the  " preferen- 


240  LAW  AND  ORDER  IN  INDUSTRY 

tial  union  shop"  then  adopted  makes  peace  possible  in 
Chicago,  in  Boston,  in  Philadelphia  and  in  seven  or 
eight  other  industries. 

In  191 5  the  cloak  industry  of  New  York  fights  out  the 
battle  over  "the  right  to  the  job."  The  solution  (the 
findings  of  the  Mayor's  Council  of  Conciliation)  furnishes 
the  basis  of  settlement  in  other  cities.* 

Thus  the  industry  suffers  that  others  may  progress. 
Its  very  failures  help  to  make  for  progress.  The  verdict 
must  be  that  the  experiences  were  successful — are  now 
successful.  If  the  business  results  were  not  as  good  as 
the  sanitary  and  social  results,  it  meant  that  we  had  not 
yet  found  the  complete  harmonization  of  all  the  ideals 
nor  the  perfect  modus  vivendi.  But  shall  we  not  be  en- 
couraged by  our  great  successes  (considering  the  difficul- 
ties)  almost  beyond  our  dreams? 

The  further  experiences  of  this  industry,  like  those  of 
the  past  five  years,  must  be  of  profit  to  the  industries  of 
this  and  other  countries.  Effort  must  be  made — constant 
effort.  Vision  and  faith  alone  will  not  suffice.  Invention 
of  new  methods — constant  attention  to  all  the  factors  of 
the  problem — or  we  shall  go  back  as  certain  as  without 
similar  effort  we  shall  go  back  in  our  politics.  There  is 
one  safe  rule — not  to  deceive  ourselves.  Bravely  to  set 
failure  side  by  side  with  success.    And  when  all  is  in- 

*  Chicago  agreement,  Women's  Wear,  September  27,  1915 — Boston 
agreement,  Women's  Wear,  September  22,  1915. 


VISION  AND   EFFORT  241 

ventoried,  both  the  failures  and  the  successes,  to  retain 
the  faith  of  the  men  of  vision — for  blundering  though 
our  steps  may  be,  their  light  does  shine  and  must  lead  on. 
We  shall  learn  by  doing.  We  cannot  go  back  to  savagery 
in  industry,  whatever  it  costs  to  go  forward. 


APPENDIX  A 
TEXT  OF  THE  PROTOCOL  AGREEMENT 

Made  September  2,  igio 

Protocol  of  an  agreement  entered  into  this  2d  day 
of  September,  1910,  between  the  Cloak,  Suit  and  Skirt 
Manufacturers'  Protective  Association,  herein  called  the 
manufacturers,  and  the  following  locals  of  the  Inter- 
national Ladies'  Garment  Workers'  Union,  namely: 
Cloak  Operators'  Union  No.  i,  Cloak  and  Suit  Tailors' 
No.  9,  Amalgamated  Ladies'  Garment  Cutters'  Associa- 
tion No.  10,  Cloak  and  Skirt  Makers'  Union  of  Browns- 
ville No.  II,  New  York  Reefer  Makers'  Union  No.  17, 
Skirt  Makers'  Union  No.  23,  Cloak  and  Skirt  Pressers' 
Union  No.  35,  Buttonhole  Makers'  Union  of  New  York 
(Local  No.  64),  Cloak  and  Suit  Pressers  of  Brownsville 
No.  68,  hereinafter  called  the  unions. 

Whereas  differences  have  arisen  between  the  manu- 
facturers and  their  employees  who  are  members  of  the 
unions  with  regard  to  various  matters  which  have  re- 
sulted in  a  strike,  and  it  is  now  desired  by  the  parties 
hereto  to  terminate  said  strike  and  to  arrive  at  an 
understanding  with  regard  to  the  future  relations  be- 
tween the  manufacturers  and  their  employees,  it  is 
therefore  stipulated  as  follows: 

First.  So  far  as  practicable,  and  by  December  31, 
19 10,  electric  power  be  installed  for  the  operation  of 
machines,  and  that  no  charge  for  power  be  made  against 
any  of  the  employees  of  the  manufacturers. 

243 


244  APPENDIX  A 

Second.  No  charge  shall  be  made  against  any  em- 
ployee of  the  manufacturers  for  material  except  in  the 
event  of  the  negligence  or  wrongful  act  of  the  employee 
resulting  in  loss  or  injury  to  the  employer. 

Third.  A  uniform  deposit  system,  with  uniform  de- 
posit receipts,  shall  be  adopted  by  the  manufacturers, 
and  the  manufacturers  will  adopt  rules  and  regulations 
for  enforcing  the  prompt  return  of  all  deposits  to  em- 
ployees entitled  thereto.  The  amount  of  deposit  shall 
be$i. 

Fourth.  No  work  shall  be  given  to  or  taken  to  em- 
ployees to  be  performed  at  their  homes. 

Fifth.  In  the  future  there  shall  be  no  time  contracts 
with  individual  shop  employees,  except  foremen,  de- 
signers, and  pattern  graders. 

Sixth.  The  manufacturers  will  discipline  any  member 
thereof  proven  guilty  of  unfair  discrimination  among  his 
employees. 

Seventh.  Employees  shall  not  be  required  to  work 
during  the  ten  legal  holidays  as  established  by  the  laws 
of  the  State  of  New  York;  and  no  employee  shall  be 
permitted  to  work  more  than  six  days  in  each  week,  those 
observing  Saturday  to  be  permitted  to  work  Sunday  in 
lieu  thereof;  all  week  workers  to  receive  pay  for  legal 
holidays. 

Eighth.  The  manufacturers  will  establish  a  regular 
weekly  pay  day  and  they  will  pay  for  labor  in  cash,  and 
each  piece  worker  will  be  paid  for  all  work  delivered  as 
soon  as  his  work  is  inspected  and  approved,  which  shall 
be  within  a  reasonable  time. 

Ninth.  All  subcontracting  within  shops  shall  be 
abolished. 

Tenth.  The  following  schedule  of  the  standard  mini- 
mum weekly  scale  of  wages  shall  be  observed : 


TEXT  OF  THE  PROTOCOL  AGREEMENT  245 

Machine  cutters $25 

Regular  cutters 25 

Canvas  cutters 12 

Skirt  cutters 21 

Jacket  pressers 21 

Underpressers 18 

Skirt  pressers 19 

Skirt  underpressers 15 

Part  pressers 13 

Reefer  pressers 18 

Reefer  underpressers 14 

Sample  makers 22 

Sample  skirt  makers 22 

Skirt  basters 14 

Skirt  finishers 10 

Buttonhole  makers,  class  A,  a  minimum  of  $1.25  per 

100  buttonholes. 
Class  B,  a  minimum  of  80  cents  per  100  buttonholes. 
As  to  piecework,  the  price  to  be  paid  is  to  be  agreed 
upon  by  a  committee  of  the  employees  in  each  shop,  and 
their  employer.  The  chairman  of  said  price  committee 
of  the  employees  shall  act  as  the  representative  of  the 
employees  in  their  deahngs  with  the  employer. 

The  weekly  hours  of  labor  shall  consist  of  50  hours  in 
6  working  days,  to  wit,  9  hours  on  all  days  except  the 
sixth  day,  which  shall  consist  of  5  hours  only. 

Eleventh.  No  overtime  work  shall  be  permitted  be- 
tween the  15th  day  of  November  and  the  15  th  day  of 
January  or  during  the  months  of  June  and  July,  except 
upon  samples. 

Twelfth.  No  overtime  work  shall  be  permitted  on 
Saturdays  except  to  workers  not  working  on  Saturdays, 
nor  on  any  day  for  more  than  two  and  one-half  hours, 
nor  before  8  a.  m.  nor  after  8.30  p.  m. 


246  APPENDIX  A 

Thirteenth.  For  overtime  work  all  week  workers  shall 
receive  double  the  usual  pay. 

Fourteenth.  Each  member  of  the  manufacturers  is  to 
maintain  a  union  shop;  a  "union  shop"  being  understood 
to  refer  to  a  shop  where  union  standards  as  to  working 
conditions,  hours  of  labor  and  rates  of  wages  as  herein 
stipulated  prevail,  and  where,  when  hiring  help,  union 
men  are  preferred;  it  being  recognized  that,  since  there 
are  differences  in  degrees  of  skill  among  those  employed 
in  the  trade,  employers  shall  have  freedom  of  selection 
as  between  one  union  man  and  another,  and  shall  not  be 
confined  to  any  Hst,  nor  bound  to  follow  any  prescribed 
order  whatever. 

It  is  further  understood  that  all  existing  agreements 
and  obligations  of  the  employer,  including  those  to  pres- 
ent employees,  shall  be  respected;  the  manufacturers, 
however,  declare  their  belief  in  the  union,  and  that  all 
who  desire  its  benefits  should  share  in  its  burdens. 

Fifteenth.  The  parties  hereby  establish  a  Joint  Board 
of  Sanitary  Control,  to  consist  of  seven  members,  com- 
posed of  two  nominees  of  the  manufacturers,  two  nomi- 
nees of  the  unions,  and  three  who  are  to  represent  the 
public,  the  latter  to  be  named  by  Meyer  London,  Esq., 
and  Julius  Henry  Cohen,  Esq.,  and,  in  the  event  of  their 
inability  to  agree,  by  Louis  Marshall,  Esq. 

Said  board  is  empowered  to  establish  standards  of 
sanitary  conditions,  to  which  the  manufacturers  and  the 
unions  shall  be  committed,  and  the  manufacturers  and 
the  unions  obligate  themselves  to  maintain  such  stand- 
ards to  the  best  of  their  ability  and  to  the  full  extent  of 
their  power. 

Sixteenth.  The  parties  hereby  establish  a  Board  of 
Arbitration  to  consist  of  three  members,  composed  of 
one  nominee  of  the  manufacturers,  one  nominee  of  the 


TEXT  OF  THE  PROTOCOL  AGREEMENT  247 

unions,  and  one  representative  of  the  public,  the  latter 
to  be  named  by  Meyer  London,  Esq.,  and  Julius  Henry 
Cohen,  Esq.,  and,  in  the  event  of  their  inability  to  agree, 
by  Louis  Marshall,  Esq. 

To  such  board  shall  be  submitted  any  differences 
hereafter  arising  between  the  parties  hereto,  or  between 
any  of  the  members  of  the  manufacturers  and  any  of 
the  members  of  the  unions,  and  the  decision  of  such 
Board  of  Arbitration  shall  be  accepted  as  final  and  con- 
clusive between  the  parties  to  such  controversy. 

Seventeenth.  In  the  event  of  any  dispute  arising 
between  the  manufacturers  and  the  unions,  or  between 
any  members  of  the  manufacturers  and  any  members  of 
the  unions,  the  parties  to  this  Protocol  agree  that  there 
shall  be  no  strike  or  lockout  concerning  such  matters  in 
controversy  until  full  opportunity  shall  have  been  given 
for  the  submission  of  such  matters  to  said  Board  of 
Arbitration,  and  in  the  event  of  a  determination  of  said 
controversies  by  said  Board  of  Arbitration,  only  in  the 
event  of  a  failure  to  accede  to  the  determination  of  said 
board. 

Eighteenth.  The  parties  hereby  establish  a  Committee 
on  Grievances,  consisting  of  four  members  composed 
as  follows:  Two  to  be  named  by  the  manufacturers 
and  two  by  the  unions.  To  said  committee  shall  be 
submitted  all  minor  grievances  arising  in  connection 
with  the  business  relations  between  the  manufacturers 
and  their  employees. 

Nineteenth.  In  the  event  of  any  vacancy  in  the  afore- 
said boards  or  in  the  aforesaid  committee,  by  reason  of 
death,  resignation,  or  disability  of  any  of  the  members 
thereof,  such  vacancy  in  respect  to  any  appointee  by  the 
manufacturers  and  unions,  respectively,  shall  be  filled  by 
the  body  originally  designating  the  person  with  respect 


248  APPENDIX  A 

to  whom  such  vacancy  shall  occur.  In  the  event  that 
such  vacancy  shall  occur  among  the  representatives  of 
the  pubHc  on  such  boards,  such  vacancy  shall  be  filled 
by  the  remaining  members  representing  the  pubhc  in  the 
case  of  the  Board  of  Sanitary  Control,  and  in  the  case  of 
the  Board  of  Arbitration  both  parties  shall  agree  on  a 
third  arbitrator,  and  in  case  of  their  inability  to  agree, 
said  arbitrator  shall  be  selected  by  the  governor  of  the 
State  of  New  York. 


APPENDIX  B 
RULES  AND  PLAN  OF  PROCEDURE 

Adopted  by  the  Board  of  Grievances 


Established  under  the  Protocol  of  Peace  between  the 
Cloak,  Suit  and  Skirt  Manufacturers'  Protective  Asso- 
ciation and  the  various  Local  Unions  represented  by 
the  Joint  Board. 


For  brevity,  the  Manufacturers'  Association  is  herein 
referred  to  as  the  "Manufacturers,"  the  Local  Unions 
and  Joint  Board  are  referred  to  as  the  "Unions,"  and 
where  both  parties  are  meant  they  are  referred  to  as  the 
"Parties." 

The  Board  of  Grievances 

I.  Immediately  upon  the  adoption  of  these  rules  and 
plan  of  procedure,  the  members  of  the  Grievance  Com- 
mittee, appointed  pursuant  to  the  Protocol  of  Peace, 
shall  constitute  themselves  into  a  Board,  and  shall  there- 
after be  known  as  "The  Board  of  Grievances." 

Hereafter  in  these  rules  it  will  be  referred  to  as  the 
"Board." 

II.  The  Board  shall  immediately  elect  two  chairmen, 
one  from  each  side,  who  shall  preside  alternately,  for  two 
weeks. 

249 


25©  APPENDIX  B 


Term  of  Office 


III.  These  ofi&cers  shall  hold  office  for  one  year,  or 
until  their  successors  are  elected. 


Office  of  Clerks 

rV.  The  clerks  shall  hold  office  for  one  year  or  until 
their  successors  are  elected.  Each  clerk  shall  appoint  as 
many  deputy  clerks  as  shall  be  required  for  the  expe- 
ditious transaction  of  the  business  of  the  Board. 

Upon  the  written  request  of  any  members  of  the 
Board  of  Grievances  a  committee  of  two,  consisting  of 
members  of  the  Board  or  clerks  or  deputy  clerks,  one 
representing  each  side,  shall  visit  any  shop  for  the  pur- 
pose of  ascertaining  whether  the  provisions  of  the  Pro- 
tocol are  being  observed,  and  report  on  the  conditions 
of  such  shop  to  the  Board. 

V.  A  chairman  shall  preside  at  all  meetings. 


Quorum 

VI.  The  Board  shall  consist  of  five  members  from 
each  side.  Three  members  from  each  party  (the  Manu- 
facturers and  the  Union)  shall  constitute  a  quorum  of  the 
Board. 

Regular  Meetings 

VII.  The  Board  shall  meet  regularly  at  designated  and 
appointed  times  and  places  once  a  week.  Meetings  may 
be  postponed  by  mutual  consent  and  records  of  such 
postponement  shall  be  recorded  on  the  minutes. 


rules  and  plan  of  procedure  251 

Speclvl  Meetings 

Vni.  Special  meetings  of  the  Board  shall  be  called 
only  in  cases  of  emergency,  or  where  prompt  or  imme- 
diate action  is  necessary,  and  may  be  called  by  the 
chairman  of  either  side. 

Calendar 

IX.  The  Board  shall  have  a  regular  calendar  at  each 
regular  meeting.  The  clerks  shall  prepare  a  calendar  of 
cases  to  be  disposed  of,  and  such  cases  shall  be  disposed 
of  in  regular  order,  unless  special  rules  be  made  by  the 
Board. 

Order  of  Trial 

X.  Cases  shall  be  placed  upon  the  calendar  in  the 
order  in  which  they  are  received,  i.  e.,  in  the  order  of  the 
date  of  the  fiHng  of  the  complaints. 

Trmls  and  Hearings 

XL  No  case  shall  be  taken  up  by  the  Board  until  a 
complaint  is  filed  in  writing.  As  soon  as  a  complaint  is 
filed  the  clerks  or  their  deputies  shall  make  every  effort 
to  adjust  the  controversies.  If  the  clerks  agree  their 
decision  shall  be  binding  on  both  parties,  but  either  party 
has  the  right  to  appeal  to  the  Board  if  dissatisfied  with  the 
decision  of  the  clerks.  If  the  clerks  fail  to  agree  on  a 
verdict,  the  complaint,  together  with  the  report  of  the 
clerks,  setting  forth  their  findings  as  to  the  facts,  shall 
be  presented  at  the  next  meeting  of  the  Board.  If  the 
reports  of  the  clerks  agree,  the  Board  shall  then  dispose 
of  the  matter.    If  issues  are  raised  by  the  two  reports,  the 


252  APPENDIX  B 

case  shall  be  placed  upon  the  calendar  for  trial,  and  the 
issues  shall  be  the  issues  thus  raised  by  the  reports  of  the 
clerks.  At  the  time  of  trial  both  sides  shall  be  heard  and 
both  parties  shall  offer  their  proofs,  and  the  Board  shall 
receive  and  consider  them.  The  Board  shall  refer  dis- 
puted questions  of  fact  to  any  sub-committee  of  the 
Board,  equally  constituted  from  both  parties,  who  shall 
report  their  decisions  in  writing  to  the  Board.  If  both 
parties  agree  the  decision  shall  be  final;  but  in  case  any 
question  of  principle  is  involved  in  the  decision,  the  party 
deeming  itself  aggrieved  may  take  an  appeal  to  the 
Board  of  Grievances,  which  appeal  shall  be  heard  by  the 
Board  of  Grievances,  as  any  other  matter  presented  to 
them. 

Decisions 

XII.  A  majority  vote  shall  be  necessary  to  a  decision. 
Both  sides  shall  have  an  equal  number  of  votes.  In  the 
event  of  a  failure  to  arrive  at  such  decision,  the  issues 
undecided  shall  be  immediately  framed  and  presented  to 
the  Board  of  Arbitration,  as  hereinafter  provided. 

Orders  and  Entries  of  Decisions 

XIII.  All  decisions  of  the  Board  shall  be  reduced  to 
writing  and  orders  thereon  shall  be  entered  by  the  clerks. 

The  filing  of  an  order  with  the  clerks  shall  constitute 
notice  to  each  party. 

Duplicate  Records 

XrV.  All  records  of  the  Board  shall  be  kept  in  dupli- 
cate by  the  clerks,  one  to  be  filed  with  the  Manufacturers 
and  one  to  be  filed  with  the  Unions. 


rules  and  plan  of  procedure  253 

Sanitary  Matters 

XV.  The  Board  will  not  consider  any  grievances  relat- 
ing to  sanitary  conditions.  These  should  be  addressed  to 
the  Board  of  Sanitary  Control. 

Wrongful   Discharge   of  Employee  or  Discrimi- 
nation 

XVI.  If  the  grievance  arises  because  of  the  wrongful 
discharge  of  an  employee,  or  because  of  discrimination  on 
the  part  of  the  employer,  the  finding  of  the  Board  in  favor 
of  the  employee  shall  entitle  him  to  back  pay,  in  full, 
during  the  period  of  his  non-employment,  pending  hear- 
ing and  determination  of  the  grievance. 

Shop  Strike,  Lockout  or  General  Refusal  to  Work 

XVII.  If  a  grievance  arises  because  of  the  general 
stoppage  of  work  of  a  shop  or  department  of  a  shop,  either 
by  direction  of  the  employer  or  because  of  or  by  the 
concurrent  action  of  the  employees,  upon  complaint  re- 
ceived, the  clerks,  or  their  deputies,  shall  immediately 
proceed  to  the  shop  or  department  where  the  trouble 
occurs.  If  the  employer  is  responsible  for  the  stoppage, 
he  shall,  upon  the  demand  of  the  clerks,  or  their  deputies, 
immediately  recall  all  his  employees,  pending  the  adjust- 
ment by  the  Board  of  any  grievance  he  may  have,  and  he 
shall  thereupon  frame  and  present  his  grievance;  if  the 
employees  are  responsible  for  the  stoppage,  notice  shall 
be  immediately  given  to  them  to  return  to  work  pending 
adjustment  of  the  grievance  by  the  Board  and  the 
chairman  of  the  Price  Committee  shall  immediately 
direct  them  to  return  to  work. 


254  APPENDIX  B 

Violation  of  Paragraph  XVII  of  the  Peace  Pro- 
tocol 

XVIII.  A  violation  of  the  provision  of  Section  XVII 
of  these  rules  or  of  Section  XVII  of  the  Protocol,  by 
either  employer  or  employee,  shall  constitute  a  grievance 
to  be  presented  to  the  Board  of  Grievances.  If,  after 
hearing,  the  Board  finds  the  defendant  guilty,  the  order 
of  the  Board  shall  be  made  the  basis  of  prompt  discipline 
in  the  Association  or  the  Unions  as  the  case  may  be. 
Such  discipline  shall  consist  of  a  suitable  fine  or  expulsion. 
The  action  so  taken  shall  forthwith  be  reported  in  writing 
to  the  Board  of  Grievances. 

All  names  of  candidates  for  membership  in  the  Associa- 
tion shall  be  submitted  by  the  latter  to  the  Unions  before 
the  admission  of  such  candidates,  in  order  to  afford  such 
Unions  an  opportunity  to  acquaint  the  Association  with 
the  records  of  such  candidates  in  respect  to  the  conditions 
of  their  factories  and  their  treatment  of  employees. 

Posting  of  These  Notices 

XIX.  Copies  of  the  three  preceding  paragraphs  and  of 
Section  XVII  of  the  Protocol  in  English,  and  translations 
thereof  in  Italian  and  Yiddish,  shall  be  posted  in  every 
shop  of  the  Manufacturers,  and  in  all  of  the  meeting 
rooms  of  the  Unions,  immediately  upon  the  adoption  of 
this  plan. 

Matters  for  the  Board  of  Arbitration 

XX.  Matters  for  the  Board  of  Arbitration,  (a)  If 
the  Board  of  Grievances  shall  find  after  the  hearing  of 
any  case  before  it,  that  it  cannot  arrive  at  a  decision  in 
accordance  with  the  rules  herein  provided,  it  shall  imme- 


RULES  AND   PLAN  OF  PROCEDURE  255 

diately  request  the  Board  of  Arbitration  to  convene  and 
hear  the  case.  Wherever  practicable  it  shall  reduce  the 
issue  to  an  agreed  statement  of  facts,  or  prepare  and 
submit  for  decision  specified  questions.  So  far  as  prac- 
ticable it  shall  relieve  the  Board  of  Arbitration  of  the 
necessity  of  taking  testimony  upon  the  disputed  ques- 
tions of  fact. 

General  Abuses  or  Grievances 

(b)  If  the  Board  of  Grievances  shall  find  any  general 
grievances  or  abuse,  which  either  party  has  failed,  after 
due  opportunity,  to  correct,  or  if  either  party  fails  ade- 
quately to  discipline  members  found  guilty  by  the  Board 
of  Grievances,  such  matters  may  be  presented  by  the 
party  aggrieved  to  the  Board  of  Arbitration  for  redress, 
either  through  its  counsel  or  through  its  officers,  and 
the  hearings  thereon  shall  be  pubHc. 

Conference  of  Both  Parties  Called  by  the  Board 
OF  Grievances 

XXI.  Whenever,  in  the  opinion  of  the  Board  of 
Grievances,  a  general  situation  arises  requiring  adjust- 
ment by  both  organizations,  or  revision  or  amendment  of 
the  Protocol,  it  shall  call  a  conference  of  both  organiza- 
tions by  duly  authorized  representatives  to  consider  and 
discuss  such  matters.  If  such  conference  fails  to  agree, 
the  situation  shall  be  presented  to  the  Board  of  Arbitra- 
tion for  adjustment,  pursuant  to  the  terms  of  the  Pro- 
tocol. 

Violation  of  These  Rules 

XXII.  Failure  to  observe  any  of  the  provisions  of  this 
plan  and  rules  shall  constitute  a  grievance  to  be  tried 
before  the  Board. 


256  APPENDIX  B 


Complaint  to  the  Board  of  Arbitration 

XXIII.  Failure  to  respond  in  due  course  to  any  notice 
given  by  the  clerks  shall  constitute  a  grievance  to  be  tried 
before  this  Board.  Repeated  violations  shall  be  the 
basis  of  complaint  to  the  Board  of  Arbitration. 


Failure  to  Comply  with  Orders  of  This  Board 

XXIV.  Failure  to  comply  with  any  decision  or  order 
of  the  Board  shall  constitute  a  grievance  against  the 
party  to  be  presented  to  the  Board  of  Arbitration. 

Neglect  of  Duty  on  the  Part  of  Members  of  the 

Board 

XXV.  Neglect  of  duty  on  the  part  of  any  member  on 
the  Board  shall  be  a  grievance  to  be  presented  to  the 
Board  of  Arbitration. 


Disqualification  of  Members 

XXVI.  No  member  of  the  Board  interested  in  a  case 
shall  sit  in  review  thereof. 


Failure  to  Attend  Meeting  or  Refusal  to  Vote 

XXVII.  Any  member  of  the  Board  failing  to  attend  a 
meeting  of  the  Board  or  refusing  to  vote  in  a  case  heard 
by  him,  shall  furnish  such  explanation,  or  in  case  it  shall 
be  deemed  inadequate  by  either  party,  the  matter  may 
be  presented  to  the  Board  of  Arbitration  by  the  aggrieved 
party,  either  through  its  counsel  or  through  its  ofi&cers. 


RULES  AND  PLAN  OF  PROCEDURE  257 

Appeals 

XXVIII.  Either  party  deeming  itself  aggrieved  may 
appeal  to  the  Board  of  Arbitration  from  any  order  or 
decision  made  by  the  Board  of  Grievances,  upon  giving 
notice  thereof  to  the  clerks  within  thirty  days  after  the 
service  of  a  copy  of  such  order  or  decision. 

Order  of  Business 

XXrX.  Until  further  revised,  the  order  of  business  of 
the  Board  shall  be  as  follows: 

1.  Report  of  clerks  on  adjusted  matters. 

2.  New  complaints. 

3.  Old  complaints  adjourned  for  answer. 

4.  Trials  of  issue  presented. 

5.  Matters  for  the  Board  of  Arbitration. 

6.  Matters  for  Conferences. 

I,  Morris  Hillquit,  Secretary  of  the  Board  of  Arbitra- 
tion of  the  Cloak,  Suit  and  Skirt  Manufacturers'  Protec- 
tive Association  and  Cloakmakers'  Union,  hereby  certify 
that  the  foregoing  is  a  true  and  complete  copy  of  the  rules 
and  plan  of  procedure  of  the  Board  of  Grievances  under 
the  Protocol  of  September  2d,  19 10,  as  amended  and 
settled  by  the  said  Board  of  Arbitration. 

Dated,  New  York,  March  nth,  191 1. 

Morris  Hillquit, 
Secretary. 


APPENDIX  C 

DECISION  OF  BOARD  OF  ARBITRATION 

January  21,  igi^ 

Chairman  Brandeis:  Gentlemen,  the  Board  has 
given  consideration  to  the  very  able  and  informing  argu- 
ments which  have  been  presented,  and  is  now  ready  to 
give  its  opinion. 

There  were  presented  to  the  Board  in  this  proceeding 
three  questions  of  fundamental  importance.  The  first, 
relating  to  the  respective  rights  of  employers  and  em- 
ployees in  regard  to  the  distribution  of  work. 

The  second,  relating  to  the  respective  rights  of  em- 
ployers and  employees  in  regard  to  the  discharge  of 
individual  employees. 

The  third,  relating  to  the  respective  rights  of  employer 
and  employees  in  relation  to  the  discharge  and  employ- 
ment of  help  in  the  case  of  what  is  called  reorganization 
in  the  shops. 

These  questions  were  submitted  to  us  as  questions  on 
the  one  side  and  the  other  of  alleged  existing  rights  under 
the  Protocol.  We  are  consequently  called  upon  to  decide, 
judicially,  existing  rights,  and  not  to  legislate,  we  having 
no  power  to  legislate  concerning  these  matters  under  the 
present  circumstances. 

As  we  are  to  pass  upon  what  these  rights  are  under  the 
Protocol,  it  seems  necessary  that  we  should  consider  the 
situation  prior  to  the  formation  of  the  Protocol,  the  cir- 
cumstances which  led  up  to  the  signing  of  the  Protocol, 

258 


DECISION   OF   BOARD   OF  ARBITRATION  259 

what  it  was  expected  to  accomplish,  and  what  it  appears 
to  have  accomplished,  all  of  course  as  bearing  upon  what; 
the  rights  are  on  the  various  subjects  as  to  which  we  are 
requested  to  render  a  decision. 

Now,  what  the  situation  was  which  led  to  the  forma- 
tion of  the  Protocol  appears  in  the  request  or  statement 
presented  of  the  grievances  of  the  Union.  The  statement 
was  presented  in  July,  19 10,  prior  to  or  at  the  time  of 
entering  upon  the  conferences  which  ultimately  led  to 
the  formation  of  the  Protocol.  These  grievances,  as 
stated  by  the  Union,  are  as  follows: 

"Our  main  grievances  are  low  wages,  unreasonable 
night  work,  work  in  tenement  houses,  the  disregarding  of 
Sundays  and  holidays,  sub-contracting,  discrimination 
against  Union  men,  the  irregular  payment  of  wages,  the 
exacting  of  security,  the  charging  for  material  and 
electricity,  and  the  blacklisting  of  active  Union  men. 

"To  remedy  these  grievances,  it  is  in  our  opinion 
necessary  to  establish  a  living  standard  of  wages,  to 
regulate  the  hours  of  labor,  to  limit  night  work,  to  pre- 
vent work  on  holidays,  to  abolish  all  charges  for  elec- 
tricity and  appliances,  to  do  away  with  tenement  house 
work,  to  prevent  discrimination,  to  provide  for  the 
regular  payment  of  wages  in  cash  both  by  manufacturers 
and  outside  contractors,  to  do  away  with  inside  sub- 
contracting, to  establish  a  permanent  Board  of  Arbitra- 
tion which  is  to  settle  grievances,  the  Unions  and  the 
employers  to  be  equally  represented  on  the  Board  of 
Arbitration,  the  appointment  of  shop  committees  and 
shop  delegates. 

"We  are  ready  to  enter  into  a  discussion  with  you  of 
these  grievances,  and  if  a  satisfactory  adjustment  of 
them  is  reached,  are  prepared  to  recommend  a  settlement 
of  the  strike.     In  the  event  of  such  settlement,  every 


26o  APPENDIX  C 

employee  who  participated  in  the  strike  to  be  reinstated, 
the  terms  of  any  settlement  which  may  be  reached  to  be 
reduced  to  writing  and  to  be  signed  by  both  parties 
through  their  representatives." 

The  strike  there  referred  to  was  a  strike  which  in- 
volved about  fifty  thousand  workers  in  this  trade,  and 
upwards  of  1,500  employers.  Before  the  agitation  which 
led  to  the  strike,  only  a  small  part  of  those  fifty  thousand 
workers  were  members  of  the  Union.  It  was  stated  at 
the  time  that  there  were  probably  not  more  than  three 
thousand  members  in  good  and  regular  standing  before 
the  agitation  which  led  to  the  strike  began. 

About  July  24,  1 9 10,  the  conference  began  which  re- 
sulted in  the  signing  of  the  Protocol  on  September  2, 1910. 
That  Protocol  had  four  definite  purposes.  In  the  first 
place,  the  Protocol  undertook  to  remove  specifically 
the  grievances  enumerated.  That  is,  the  parties  met  to 
decide  by  agreement  upon  the  specific  things  that  should 
be  done  with  reference  to  each  of  these  grounds  of  com- 
plaint: and  each  matter  agreed  upon  became  a  specific 
provision  of  the  Protocol. 

The  result  of  that  was  to  raise  the  industry  as  a  whole, 
practically  each  and  every  part  of  it,  to  the  standard 
which  it  is  said  was  already  observed  by  those  shops 
in  the  industry  which  were  most  advanced.  Its  effect 
was  to  create  the  uniformly  high  standing  provided  by 
the  Protocol — which  theretofore  had  been  reached  only 
in  individual  instances. 

The  second  result  which  was  sought  by  the  Protocol 
was  to  create,  through  the  strengthening  of  the  Em- 
ployers' Association  on  the  one  hand,  and  of  the  Union  on 
the  other,  bodies  which  should  be  able  to  enforce  com- 
phance  with  the  terms  of  the  agreement  which  was  made. 
It  was  recognized  that  without  a  strong  Union  of  em- 


DECISION  OF  BOARD   OF  ARBITRATION  261 

ployees  on  the  one  side,  and  a  strong  Employers'  Associa- 
tion on  the  other,  the  agreement  could  not  attain  the 
desired  results. 

Therefore,  each  party  bound  itself  to  aid  the  other  in 
strengthening  the  organization  of  that  other,  to  the  end 
that  what  both  had  in  mind  and  both  purposed,  the 
improvement  of  the  conditions  in  the  industry,  might  be 
effectually  carried  out. 

In  the  third  place,  it  was  proposed,  in  creating  the 
Protocol,  to  insure  to  the  individual  employee  not  only 
the  comphance  with  the  specific  provision  named  in  the 
Protocol,  which  involved  changes  in  a  large  part  of  the 
shops,  but  to  secure  to  the  individual  employee,  through 
the  Protocol,  the  enforcement  of  fair,  reasonable  and 
just  treatment  by  his  employer;  such  treatment  which, 
independently  of  the  Protocol,  could  ordinarily  have  been 
enforced  only  through  strikes.  That  is,  the  Protocol  was 
devised  to  enforce  for  the  benefit  of  the  employee  a  right 
to  fair  and  just  treatment;  or,  to  put  it  in  another  way, 
to  secure,  through  the  instrumentaHty  of  the  Protocol, 
the  reasonable  certainty  that  the  employer  would  not 
exercise  his  legal  rights  oppressively  or  unfairly. 

In  the  fourth  place,  it  was  the  purpose  of  the  Protocol 
to  introduce  into  the  relations  of  the  employer  and  the 
employee  a  whole  new  element;  that  is,  the  element  of 
industrial  democracy;  that  there  should  be  a  beginning, 
at  least,  of  a  joint  control,  and  with  joint  control  a  joint 
responsibility  for  the  conduct  of  this  industry:  that  we 
should  pass  from  that  condition  where  the  employer  de- 
termined alone  what  was  to  be  deemed  proper,  and  where 
the  employer  alone  was  held  responsible  for  things  that 
were  improper  in  the  trade;  and  that  in  place  thereof  we 
should  impose  upon  all  those  in  the  trade,  the  employer 
as  well  as  the  employee,   the  obhgation  of  removing 


262  APPENDIX   C 

through  constructive  work,  those  conditions  which  prop- 
erly caused  discontent,  and  which  prevented  the  em- 
ployer and  employee  alike  from  attaining  that  satisfac- 
tory living  within  the  industry  which  it  must  be  the  aim 
of  all  efifort  in  business  to  secure. 

It  therefore  was  an  essential  part  of  this  Protocol  that 
it  should  look  forward  to  improvement;  and  that  the 
condition  arrived  at,  although  it  was  very  much  higher 
than  that  which  had  prevailed  before  the  Protocol  was 
adopted,  was  merely  a  stage  in  that  development  of  the 
trade  which  the  parties  believed  to  be  possible,  that  the 
higher  steps  were  to  be  attained  through  cooperation, 
through  a  removal  of  that  sense  of  antagonism  of  inter- 
ests which  had  prevailed,  and  must  necessarily  prevail 
under  other  conditions,  and  which  was  believed  to  be  an 
important  cause  of  the  discontent  and  of  the  unsatisfac- 
tory results  hitherto  prevailing. 

Those  who  entered  into  the  Protocol,  therefore,  looked 
forward  to  advances  and,  as  has  been  said  in  one  of  the 
earlier  opinions  of  this  Board,  a  constant  improvement 
in  the  condition  of  the  worker  was  a  part  of  the  standard 
to  which  we  were  bound  to  look  forward.  It  was  recog- 
nized at  that  time,  that  the  attainment  of  the  end  sought 
required  not  only  the  cooperation  between  this  par- 
ticular Union  and  this  particular  Employers'  Association, 
but  involved  also  the  abihty  on  the  part  of  the  Union  to 
raise  the  standards  in  other  shops  in  this  city  and  in  other 
places  which  would  naturally  be  in  competition  with 
those  members  of  the  Protective  Association;  and  the 
efifort  of  the  Union  was  pledged  to  secure,  so  far  as  possi- 
ble, that  improvement  of  standard  elsewhere. 

Now,  those,  as  we  conceive  it,  were  the  purposes  sought 
to  be  accomplished.  It  was  not  intended  by  the  Protocol 
to  change  the  relation  of  the  employer  to  the  employee, 


DECISION  OF  BOARD   OF  ARBITRATION  263 

otherwise  than  as  I  have  stated  and  as  is  expressly  stated 
in  the  Protocol.  In  all  other  respects  the  legal  rights 
were  to  remain  what  they  had  been  before. 

The  Union,  by  signing  the  Protocol,  relinquished  its 
right  to  secure  by  strike  more  than  it  was  getting,  and 
there  was  substituted  for  that  relinquished  power  of 
strike,  the  powers  created  under  this  agreement,  which 
constitutes  a  government  to  control  the  relations  between 
employer  and  employee.  And  as  this  Union  and  other 
Unions  had  frequently  exercised  their  right  to  enforce 
the  fair,  just  and  reasonable  exercise  by  the  employer  of 
his  legal  rights  in  regard  to  the  administration  of  busi- 
ness, and  in  regard  to  hiring  and  discharging,  so  this 
instrument  involved  in  its  creation  the  right  to  secure, 
through  its  provisions,  the  same  thing.  But  it  substi- 
tuted for  the  strike  the  machinery  of  the  Protocol  as  a 
means  of  securing  the  fair  and  reasonable  exercise  by  the 
employer  of  those  rights  which  were,  by  law,  vested  in 
him. 

We  are  of  the  opinion,  therefore,  that  underlying  the 
Protocol,  and  of  the  essence  of  its  existence,  must  be  a 
spirit  of  fairness,  that  it  must  be  understood  as  a  basis 
for  any  proper  interpretation  of  it  and  application  of  it; 
that  the  parties  desire  by  its  provisions  to  promote, 
foster  and  develop  square  dealings  in  all  of  the  relations 
of  employer  and  employee;  that  its  purpose  must  be 
read  in  the  light  of  an  honest  attempt  to  eliminate  un- 
conscionable and  unjust  conditions  in  this  important 
and  necessary  relationship;  that  unreasonable  acts  or 
demands  are  not  to  be  expected  from  either  of  the  parties, 
and  that  anything  of  that  nature  would  be  in  violation 
of  the  fundamental  purpose  of  the  Protocol;  that  in  the 
Ught  of  these  basic  principles,  the  Board  decides,  as  bear- 
ing upon  the  questions  of  discharge: 


264  APPENDIX  C 

That  no  employee  who  can  be  considered  as  a  regular 
employee,  should  be  discharged  unfairly  or  without 
reasonable  grounds.  In  other  words,  that  the  spirit  of 
fairness  and  the  rule  of  reason  be  used  to  determine 
whether  or  not  an  employee  should  be  discharged; 

That  the  right  of  determining  this  must  in  the  first 
instance  rest  with  the  employer,  and  that  any  employee, 
deeming  himself  unjustly  treated,  has  a  right  to  make 
his  complaint  and  have  his  grievance  heard  in  the  regular 
manner.  And  in  the  hearing  of  such  cases,  it  is  under- 
stood that  the  parties  administering  the  Protocol  are  to 
look  into  all  the  facts  and  to  apply  the  same  standards  for 
determining  the  case,  thus  eliminating  the  burden  of 
proof  from  all  consideration. 

That  statement,  and  what  bears  upon  the  other 
branches,  may  perhaps  be  amplified  by  this  further 
statement : 

The  power  of  administration,  discipline  and  discharge 
vested  in  the  employer  shall  be  exercised  in  a  fair  and 
reasonable  manner,  and  if  the  propriety  of  the  action  is 
questioned,  shall  be  subject  to  review. 

The  words  "fair"  and  "reasonable,"  as  used  herein, 
Vshall  be  interpreted  in  the  light  of  the  spirit  and  of  the 
purpose  of  the  Protocol  as  stated,  and  that  spirit  and 
purpose  includes,  among  other  things,  the  following: 

First:  To  assist  the  employer  in  the  peaceful  and  unin- 
terrupted operation  of  his  factory,  in  estabhshing  and 
maintaining  reasonable  discipline,  and  in  promoting  such 
economy  and  efficiency  of  production  as  may  be  secured 
by  cooperative  effort. 

Second :  To  assist  the  Union  in  establishing  the  strength 
and  efficiency  of  its  organization,  and  raise  the  standard 
throughout  the  trade,  to  the  end  that  the  Union  power 
may  be  adequate  to  carry  the  responsibilities  and  perform 


DECISION  OF   BOARD  OF  ARBITRATION  265 

the  duties  imposed  upon  it  by  the  Protocol,  and  to  pro- 
mote the  cooperation  and  good  will  between  the  Union 
and  the  Association,  so  essential  to  the  successful  opera- 
tion of  the  Protocol,  and  to  the  solution  of  the  problems 
of  the  industry. 

Third:  Subject  to  the  foregoing  provisions,  to  assist 
the  individual  worker  in  obtaining  such  security  and 
continuity  in  his  employment,  such  equity  in  the  dis- 
tribution of  work  and  such  fairness  of  general  treatment 
and  of  conditions  as  may  be  possible  and  practicable, 
having  regard  to  the  unavoidable  fluctuations  and 
exigencies  of  the  work,  and  the  imperfections  and  limita- 
tions of  ordinary  human  nature  by  which  this  enormously 
difl&cult  industry  must  be  administered. 

And  as  bearing  upon  the  question  of  what  is  "fair  and 
reasonable,"  in  the  division  of  the  work,  the  following 
may  be  of  assistance  as  a  guide: 

The  equal  division  of  work  is  to  be  regarded  as  desirable 
and  necessary  in  this  industry,  for  it  must  be  acknowl- 
edged that  it  should  be  made  possible  for  the  people 
called  into  the  industry,  and  who  are  regularly  employed 
therein,  to  earn  a  reasonable  livelihood,  but  the  principle 
of  the  equal  division  of  the  work  is  inseparably  bound 
up  with  the  principle  of  control  of  labor  supply.  The 
industry  may  be  able  to  sustain  the  burden  of  supporting 
fifty  thousand  workers  while  the  burden  of  supporting 
seventy-five  thousand  might  break  down  the  industry. 

This  makes  it  indispensable  that  the  question  of  the 
control  of  labor  supply  must  be  considered  in  any  per- 
manent treatment  of  this  question. 

We  recommend,  therefore,  that  this  question  shall  be 
taken  up  for  consideration  and  disposition  by  a  joint 
committee. 

You  will  see,  therefore,  that  in  reference  to  what  is  a 


266  APPENDIX  C 

regular  employee  and  in  undertaking  to  indicate  what 
would  be  a  fair  and  reasonable  application  of  the  com- 
monly practiced  rule  of  equitably  distributing  work,  that 
we  have  not  undertaken  to  lay  down  a  definite  rule  or  to 
express  in  a  specific  code  what  is  fair  and  what  is  reason- 
able. For  we  believe  that  any  attempt  to  define  what  is 
fair  and  reasonable  with  reference  to  discharge  or  in  the 
administration  of  the  shop,  would,  in  the  long  run,  lead 
rather  to  injustices  than  to  justice.  What  is  fair  and 
reasonable,  all  things  and  all  interests  considered,  is 
something  which,  in  the  absence  of  specific  agreement 
between  the  parties,  must  be  left  to  the  judgment  of  men 
familiar  with  the  particular  facts,  and  the  facts  will  vary 
in  particular  cases. 

We  are  confronted  with  a  situation  which  is  similar  to 
that  with  which  courts  and  juries  have  constantly  to 
deal — the  question  of  what  is  reasonable  care,  with  the 
question  of  what  is  reasonable  notice,  and  with  the  ques- 
tion of  what  is  reasonable  cause  for  action.  Any  attempt 
to  codify  what  is  reasonable  would  have  to  make  provi- 
sion and  take  into  consideration  so  many  possible  condi- 
tions and  such  remote  possibilities  that  the  mind  of  man 
could  not  justly  determine  in  advance  the  rule  to  be 
applied.  Indeed,  the  rules,  if  determined  in  advance, 
would  prove  so  numerous  that  the  mere  selection  of  the 
rule  to  be  applied  would  present  a  difficulty  almost 
insurmountable. 

It  is  perfectly  possible,  however,  that  in  respect  to 
certain  of  the  questions  bearing  upon  this  subject,  the 
parties  may  come  together,  and  reach  an  agreement, 
which  will  in  the  first  instance  relieve  the  employers  and 
employees,  and  then  the  clerks  or  the  Committee  on 
Immediate  Action,  from  the  necessity  of  passing  upon 
certain  classes  of  individual  cases.    The  parties  could  do 


DECISION  OF   BOARD  OF  ARBITRATION  267 

this  by  Ia5ang  down  some  rule  which  should  in  certain 
well-defined  classes  of  cases  be  accepted  as  the  reasonable 
and  fair  course  of  action. 

And  this  suggestion  as  to  what  parties  may  be  able  to 
do  in  simplif>'ing  by  agreement  the  determination  of  the 
rule  to  be  followed,  applies  perhaps  even  more  strongly 
to  the  questions  which  have  been  presented  to  us  in 
connection  with  the  reorganization  of  shops.  On  that 
subject  we  feel  ourselves  unable  as  stated  to  lay  down  any 
rule  except  that  the  action  shall  be  what  is  fair  and  rea- 
sonable. But  it  is  perfectly  possible  that  if  you  gentle- 
men will  come  together  in  conference  to  consider  certain 
well-defined  classes  of  cases,  you  may  be  able  to  deal 
with  them  comprehensively,  and  to  that  extent  narrow 
the  field  in  which  the  discretion  of  the  employer,  of  the 
clerk  and  of  the  Committee  on  Immediate  Action  would 
otherwise  have  to  be  exercised. 

We  feel,  however,  that  there  are  other  matters  even 
more  far-reaching,  and  of  deeper  significance,  upon  which 
it  is  essential  that  the  parties  should  get  together:  the 
particular  questions  in  connection  with  the  distribution 
of  work,  discharge  and  the  reorganization  of  shops,  which 
have  brought  you  here  before  us.  Underlying  these 
matters  are  some  fundamental  difficulties  in  the  trade, 
for  which  neither  the  one  side  nor  the  other  can  be  held 
wholly  responsible,  and  for  which  both  sides  must,  in  our 
opinion,  be  held  responsible,  not  in  the  sense  of  being 
culpable  for  their  existence,  but  in  the  sense  of  having  the 
responsibiHty  of  removing  by  careful,  persistent  thinking 
and  experimentation,  the  causes  of  the  trouble.  These 
causes  cannot  possibly  be  removed  by  shifting  burdens 
from  one  side  to  the  other.  The  difiiculties  and  incidental 
sufi'ering  are  inherent  in  the  trade.  And  of  these  difficul- 
ties the  three  of  greatest  importance  are: 


268  APPENDIX  C 

First :  the  matter  of  standardizing  prices. 

We  feel  that  on  the  questions  of  discharge  and  re- 
organization, particularly,  this  subject  of  a  standardiza- 
tion of  prices  has  the  most  definite  and  indeed  controlling 
bearing.  At  present  collective  bargaining  exists  in  the 
trade  only  nominally.  There  was  collective  bargaining 
in  fixing  upon  the  week  rates  when  this  Protocol  was 
confirmed ;  but  there  is  not  in  any  proper  sense  collective 
bargaining  in  deahng  with  the  subject  of  piece  rates,  and 
the  wages  of  at  least  three-fourths  of  the  employees  rest 
upon  piece  rates. 

It  has  been  stated  here  that  there  ought  not  to  be 
competition  within  the  Union,  but  we  have  here  in  a  sense 
1,500  or  2,000  different  competing  units;  for  the  piece 
prices  are  made  independently  in  each  shop.  Some  way 
must  be  found  of  standardizing  prices.  It  does  not  seem 
to  us  to  be  at  all  beyond  the  realm  of  human  achievement 
in  this  industry  to  solve  that  problem.  But  the  members 
of  the  Union  on  the  one  hand,  and  of  the  Manufacturers 
on  the  other,  should  accept  the  burden  involved  in  solv- 
ing this  problem  and  devote  themselves  persistently  to 
working  out  some  standard.  It  is  perfectly  clear  that  in 
working  out  some  general  standard,  they  will  not  be  able 
to  solve,  in  many  instances,  an  individual  case  as  satis- 
factorily as  one  of  the  two  thousand  manufacturers 
might  satisfy  it  for  himself.  But  the  parties  can  secure, 
and  they  must  secure,  some  approach  to  reasonable 
uniformity  in  the  fixing  of  piece  prices  acceptable  as  a 
working  basis. 

The  second  matter  has  important  relation  not  only  to 
questions  of  discharge  and  reorganization,  but  also  to  the 
regularization  of  employment,  the  question  of  distribu- 
tion of  work.  The  Board  realizes  the  difficulties  inherent 
in  that  problem  as  this  is  a  seasonable  industry:  and  we 


DECISION  OF  BOARD  OF  ARBITRATION  269 

are  convinced,  that  it  is  inevitably  bound  up  with  the 
question  of  control  of  the  labor  supply.  It  involves  the 
question  of  apprenticeship  in  this  industry.  This  in- 
dustry cannot  be  made  either  what  the  employers  or  the 
employees  have  the  right  to  insist  that  it  should  become, 
unless  some  way  is  found,  through  invention,  experi- 
mentation and  broad  processes  of  education,  of  mitigating 
in  large  measure  the  present  barbaric  conditions  which 
prevail  in  this  industry.  The  irregularity  of  employment 
not  only  involves  terrible  waste  for  employer  and  em- 
ployee, and  ultimately  for  the  community  also,  but  also 
brings  about  unhappiness  and  demoralization  on  the  part 
of  all  affected  by  it. 

Third,  and  as  bearing  upon  the  possible  solution  of 
these  questions,  and  also  the  necessary  relation  of  these 
Protocol  shops  with  those  who  are  outside  the  Protocol, 
whether  in  this  city  or  any  other  cities,  the  Board  recom- 
mends the  careful  consideration  by  the  parties  of  the 
Protocol  label. 

The  achievements  of  the  past  four  years  and  a  half 
in  which  those  engaged  in  this  industry  have  been  en- 
deavoring to  work  out  their  problems,  and  in  a  certain 
sense  the  problems  of  all  industries,  justify  them  in 
calling  upon  the  public  to  aid  in  making  possible  the 
solution  of  the  problems  involved.  We  are  dealing 
specifically  with  the  problems  of  only  a  part  of  the  gar- 
ment trade;  but  your  problems  are  in  large  measure  the 
problems  of  all  industry.  You  are  leaders  in  the  attempt 
to  work  out  these  problems,  and  are  entitled  not  only  to 
the  sympathetic  consideration,  but  to  the  help  of  the  rest 
of  the  community.  Protocol  conditions  are  conditions 
which  the  community  desires  to  have  established  gen- 
erally. There  are  scarcely  any,  whether  employers  or 
employees  or  consumers,  who  do  not  wish  to  accomphsh 


270  APPENDIX   C 

exactly  what  those  who  are  in  this  industry  are  seeking 
to  accomplish  by  way  of  bettering  the  relations  of  em- 
ployer and  employees.  Some  method  ought  to  be  devised 
of  enlisting  the  cooperation  of  the  community  in  the 
great  and  difi&cult  task  of  working  out  these  problems. 
The  Protocol  label  has  been  suggested  as  one  of  the 
means  of  accomplishing  such  cooperation.  However 
valuable  the  suggestion,  it  is  obvious  that  its  practical 
application  is  a  matter  of  great  but  not  of  insuperable 
difficulty. 

We  believe  that  that  fourth  purpose,  stated  at  the 
outset  of  the  Protocol,  of  the  careful  working  together  by 
the  two  parties  of  the  problems  of  this  industry,  as  being 
joint  problems  of  employer  and  employee,  is  the  key  to 
the  ultimate  solution  of  most  difficulties.  New  questions 
will  constantly  arise,  partly  because  of  the  changes  which 
come  in  the  trade  from  time  to  time,  and  more  largely,  it 
is  hoped,  because  of  the  growing  demand  which  should 
properly  be  made  for  an  improvement  in  the  condition  of 
the  worker.  But  those  problems  can  never  be  adequately 
solved;  the  relief  can  never  be  given  to  any  appreciable 
extent  by  the  shifting  of  the  burdens  either  from  the 
employers  to  the  employees,  or  from  the  employees  to  the 
employers.  We  may  all  look  forward  to  the  time — as  was 
suggested  in  one  of  the  papers  read  here — when  labor 
will  employ  capital,  instead  of  capital  employing  labor; 
but  whether  labor  employs  capital  or  capital  employs 
labor,  we  must  meet  the  fundamental  problem  of  ade- 
quate production — of  such  an  increase  of  productivity 
and  diminution  of  waste  as  shall  make  the  total  product 
sufficient  to  reasonably  satisfy  the  desires  as  well  as  needs 
of  those  actually  engaged  in  the  industry.  In  the  opinion 
of  the  Board,  it  is  necessary  that  the  parties  should  be 
constantly  directing  their  attention  to  the  improvement 


DECISION  OF  BOARD  OF  ARBITRATION  271 

of  fundamental  conditions.  We  realize  that  in  this  in- 
dustry, with  all  of  its  difficulties,  and  with  the  very  large 
number  of  persons  engaged  in  it  as  the  employers  and 
employees,  there  will  inevitably  be  many  persons  who 
consider  themselves  aggrieved,  and  many  who  are  ac- 
tually aggrieved.  We  beUeve  that  every  case  in  which 
an  employer  or  employee  considers  himself  aggrieved, 
should  receive  careful  and  adequate  consideration;  be- 
cause that  is  an  essential  part  of  the  Protocol,  indeed 
the  life  of  the  Protocol.  Nevertheless  that  it  ought  to  be 
possible  now  to  devise  methods  and  means  so  as  to  re- 
lease the  energies  and  the  time  of  those  who  are  best  able 
to  give  attention  to  the  larger  problems  of  the  industry. 
The  individual  grievances  should  be  investigated  and 
adjusted  mainly  through  the  efforts  of  the  clerks  or  the 
Committee  on  Immediate  Action.  The  time  of  the  other 
officers  in  high  stations  among  both  employers  and  em- 
ployees should  be  reserved  for  the  consideration  of  the 
fundamental  difficulties  referred  to,  and  the  solution  of 
which  seems  to  us  to  be  absolutely  necessary  to  the 
satisfactory  adjustment  of  the  mutual  relations,  and  a 
satisfactory  result  to  all  concerned. 

There  are  a  few  words  that  perhaps  could  be  added  to 
what  I  have  said,  on  the  one  hand  by  Mr.  Thompson, 
and  on  the  other  by  Mr.  Holt. 

Mr.  Thompson:  It  perhaps  might  properly  be  said  at 
this  time,  in  regard  to  the  third  proposition  which  was 
submitted  to  the  Board  for  adjudication — I  am  referring 
to  that  one  relating  to  the  equal  distribution  of  work,  as 
far  as  possible — that  in  the  consideration  of  that  ques- 
tion, the  Board  feels  that  it  has  adequately  answered  it 
by  the  laying  down  of  the  principles  which  have  been 
read  to  you  by  Mr.  Brandeis.  I  might  refer  to  a  portion 
of  the  language  which  must  necessarily  be  taken  alone, 


272  APPENDIX  C 

which  will  help  in  elucidating  what  I  am  referring  to. 
That  is  to  say,  the  Protocol  is  for  the  purpose  of  assisting 
the  individual  workers  in  obtaining  such  security  and 
continuity  of  employment  and  such  equity  in  the  dis- 
tribution of  work,  and  such  fairness  of  general  treatment 
and  conditions  as  may  be  possible  and  practicable.  The 
Board  feels  that  the  laying  down  of  those  general  prin- 
ciples will  furnish  an  adequate  guide  for  the  carrying  out 
of  the  Protocol,  and  that  it  is  not  necessary  at  this  time 
to  go  into  the  laying  down  of  rules  or  the  settlement  of 
definite  matters  which  might  properly  be  left  to  the 
parties  themselves.  We  feel  that  this  will  give  an  ade- 
quate guide  to  the  employer,  to  the  clerks,  to  the  Com- 
mittee on  Immediate  Action,  and  if  it  should  be  that  any 
question  should  still  exist,  of  course  an  appeal  from  the 
Committee  on  Immediate  Action  to  this  Board  would 
permit  the  Board  to  pass  on  the  proposition. 

Chairman  Brandeis:  I  ought  to  add  simply  this, 
which  the  Board  had  requested  me  before  to  say  that  if, 
after  the  parties  have  come  together  in  their  conferences 
to  consider  any  of  these  questions  in  which  the  Board 
can  in  any  way  aid  the  parties,  it  stands  ready  to  meet 
again  at  as  early  a  date  as  is  practicable  for  that  purpose. 

Mr.  Holt  says  that  he  has  nothing  to  add  to  what  has 
been  stated  by  Mr.  Thompson  and  myself. 

Mr.  Hillquit:  Mr.  Chairman,  Mr.  Thompson  and 
Mr.  Holt — In  behalf  of  the  Union,  which  was  the  moving 
party  in  this  proceeding,  I  wish  once  more  to  thank  the 
Board,  and  all  its  members,  for  the  time,  attention  and 
consideration  given  to  our  requests  laid  before  them,  and 
also  for  the  opinion  rendered  to-day.  We  accept  the 
opinion,  gentlemen,  in  the  spirit  in  which  it  was  rendered. 
We  have  submitted  to  you  certain  specific  requests  for 
interpretation,  certain  specific  requests  for  rules  of  con- 


DECISION   OF   BOARD   OF   ARBITRATION  273 

duct.  You  have  not  given  us  definite,  concrete  direc- 
tions, but  we  feel  that  you  have  done  more.  You  have 
given  us  a  guide,  a  guide  of  general  conduct  in  our  rela- 
tions to  each  other,  based  upon  the  highest  principles  of 
fairness  and  justice.  We  could  not  expect  more,  we  did 
not  expect  more,  and  we  promise  you,  gentlemen  of  the 
Board,  that  we  shall  make  honest  efforts  to  make  this 
guide  the  standard  of  our  relations,  the  test  of  our  rela- 
tions with  the  employers.  And  I  wish  to  say  here,  per- 
haps to  some  extent  for  the  information  of  you  gentlemen 
of  the  Board,  that  our  position  when  we  come  before  you 
is  necessarily  somewhat  unfortunate,  and  may  perhaps 
tend  to  give  you  an  erroneous  impression  of  the  actual 
relations  existing  between  us,  and  the  actual  situation  of 
the  industry.  We  come  before  you  with  our  difficulties. 
We  come  before  you  after  some  clash  or  another  which  is 
bound  to  arise,  but  I  am  happy  to  say  we  do  not  come 
very  often  before  you.  But  it  is  natural.  We  have  no 
occasion  to  apply  to  you  for  intervention  and  guidance 
and  assistance  when  everything  is  harmonious  between 
us.  Our  industry  is,  as  the  Chairman  of  your  Board  well 
remarked,  one  beset  with  extreme  difficulties,  the  usual 
difficulties  of  every  industry  in  these  times,  difficulties 
created  by  fierce  competition  among  the  employers, 
and  other  conditions,  conditions  of  labor  generally,  and 
economic  conditions.  We  have  yet  the  special  and  pe- 
culiar difficulties  of  a  highly  seasonal  industry,  and 
perhaps  other  difficulties  inherent  in  our  industry  alone, 
and  based,  to  a  large  extent  also,  upon  the  character  both 
of  the  employers  and  the  employees. 

And  I  want  you  to  remember,  gentlemen,  that  these 
relations  that  arise  or  spring  from  this  situation  are  such 
as  may  be  classified  and  generalized  and  brought  before 
you,  or  laid  before  the  public  as  an  abstract  proposition, 


274  APPENDIX  C 

but  that  in  actual  life  they  find  expression  in  the  daily 
relations  of  about  two  thousand  employers  with  about 
fifty  thousand  employees,  of  both  sexes,  and  all  ages; 
and  both  the  employers  and  the  employees  are  vitally 
interested  in  every  question  that  arises  in  their  relations. 
All  of  these  workers  have  to  look  for  their  Hving  to  the 
industry,  and  the  conduct  of  the  industry,  and  the  em- 
ployers likewise.  Thus  we  have  thrown  against  each 
other  in  daily  contact  the  interests  of  more  than  fifty 
thousand  human  beings,  the  vital  interests  of  such  a 
large  army  of  men  and  women,  both  employers  and  em- 
ployees. And  with  that  we  have  managed,  in  the  course 
of  more  than  four  years,  to  not  only  maintain  the  rela- 
tions between  us,  in  the  spirit  in  which  we  attempted 
to  express  it  in  our  Protocol,  but  to  improve  those  rela- 
tions on  the  whole.  It  is  a  most  eloquent  testimony  of 
how  well  those  who  have  given  us  this  Protocol  have  per- 
formed their  work.  I  say,  on  behalf  of  the  organization  I 
have  the  honor  to  represent,  that  it  shall  be  our  effort  to 
continue  this  work,  the  work  of  improving  the  conditions 
of  the  industry  and  protecting  the  men  and  women  in  the 
industry,  from  day  to  day,  under  the  Protocol.  I  know  it 
is  a  difficult  task.  We  all  realize  it.  We  know  we  cannot 
create  ideal  conditions  satisfactory  to  both  parties  within 
a  very  short  time,  but  I  am  free  to  say  that  some  of  the 
recommendations  mentioned  by  the  Chairman  we  have 
had  under  consideration.  In  some  of  them,  as  my  friend 
Mr.  Cohen  has  stated  to  the  Board,  we  have  made  a 
beginning  at  least  of  what  we  hope  will  be  a  perfectly 
feasible  and  workable  plan.  Others,  as  far  as  we  are  con- 
cerned, we  shall  take  up  as  speedily  as  possible  and  give 
them  our  earnest  consideration.  In  our  future  dealings 
with  each  other,  the  opinion  of  this  Board  rendered  here 
to-day  will  very  often  have  to  be  referred  to.    I  hope  that 


DECISION  OF  BOARD  OF  ARBITRATION  275 

no  effort  will  be  made  on  the  part  of  either  of  the  two 
parties  to  ossify  this  beautiful  living  principle  enunciated 
by  the  Chairman;  that  no  effort  will  be  made  to  codify, 
as  the  Chairman  has  expressed  it,  those  general  princi- 
ples, but  that  both  sides,  and  particularly  the  men 
charged  with  the  machinery  for  the  adjustment  of  all 
grievances,  large  or  small — and  they  are  bound  to  come 
up  from  day  to  day — will  bear  the  spirit  of  this  decision 
in  mind,  rather  than  try  to  analyze  the  exact  expressions. 
As  far  as  we  are  concerned,  we  are  not  only  willing  but 
absolutely  determined  to  live  up  to  that  spirit,  and  I 
hope  it  will  not  become  necessary  for  either  side  to  con- 
vene another  session  of  this  Board,  with  the  request  for 
supplemental  legislation  or  rules.  We  hope,  with  the 
general  rules  of  guidance  given  to  us,  we  shall  be  able  to 
settle  our  few,  and,  after  all,  insignificant  controversies, 
from  time  to  time,  and  to  continue  our  period  of  con- 
structive work  for  the  benefit  of  the  industry  and  both 
of  the  parties  concerned  in  it. 

Once  more  I  thank  you,  gentlemen  of  the  Board,  in 
behalf  of  the  Unions. 

Mr.  Julius  Henry  Cohen:  I  must  share  with  my 
colleague  the  expressions  of  gratitude  for  the  great  service 
that  the  Board  has  given.  I  suppose  that  it  will  be 
inevitable,  in  the  reading  of  your  opinion,  as  in  the  hear- 
ing of  it,  that  each  side  will  put  emphasis  upon  those 
portions  which  it  regards  of  interest  to  it.  But  so  far  as 
the  expressions  from  my  colleague  with  reference  to  the 
desire  to  heed  the  injunction  of  the  Board,  to  do  con- 
structive thinking,  planning  and  invention,  I  need  only 
say  that  my  friend — and  may  I  say  that  I  need  no  such 
injunction.  From  the  moment  that  my  colleague  entered 
into  the  consideration  of  this  question,  I  have  found  him 
ready  to  consider  every  proposition  for  the  improvement 


276  APPENDIX   C 

of  the  industry  and  to  consider  it  frankly  and  construc- 
tively and  to  share  in  the  carrying  of  the  burden.  And  in 
his  expressions  to-day  he  has  merely  continued  the  spirit 
that  began  with  his  entrance  into  this  situation. 

I  am  very  glad  indeed  that  the  Board  has  impressed 
both  sides  with  the  importance  of  spending  more  time 
upon  the  root  problems  of  this  industry  than  the  spending 
of  time  upon  the  smaller  litigations.  As  you  have  ob- 
served from  my  presentation,  we  are  of  the  opinion  that 
there  is  much  waste  of  time  in  unnecessary  litigation. 
The  time  of  the  Executive  officers  should  be  released  for 
the  consideration  of  the  big  problems  of  the  industry. 
We  feel  it  is  a  burden  to  ask  men  who  have  to  carry  the 
responsibilities  of  factory  and  office  life  here,  with  the 
tremendous  ordinary  wear  and  tear,  and  the  extraordi- 
nary wear  and  tear  of  abnormal  situations,  and  then  ask 
them  to  give  service  to  an  industry  in  the  sense  in  which 
we  lawyers  give  service  to  our  profession.  We  are  for- 
tunately situated,  we  lawyers.  Our  time  is  arranged  so 
that  we  can  give  service  to  our  profession,  and  yet  per- 
form our  usual  vocations,  but  business  men  have  diffi- 
culty in  doing  that,  especially  those  men  whose  livelihood 
is  dependent  on  the  business.  Our  friends  are  more 
fortunately  situated,  not  merely  that  their  duties  are  less 
arduous  or  less  exacting  but  that  this  is  their  only  duty 
to  consider  these  propositions  from  an  industrial  point  of 
view,  and,  as  I  say,  we  are  very  glad  to  have  you  bring 
home  the  importance  of  separating  the  time  spent  upon 
small  matters  and  devoting  it  to  large  matters. 

We  would  have  been  glad,  as  my  friend  would  have 
been  glad,  to  have  had  more  definite  and  specific  rulings 
from  the  Board.  As  an  expression  of  the  spirit  that 
should  animate  the  attitude  of  both  parties,  neither  of  us 
can  take  exception  to  what  you  have  said.    And  might 


DECISION  OF  BOARD  OF  ARBITRATION  277 

I  say  on  behalf  of  my  clients,  that  so  far  as  the  Associa- 
tion and  its  officers  are  concerned,  that  is  the  spirit  that 
we  have  sought  to  carry  out  in  the  last  four  and  a  half 
years,  and  we  rest  upon  our  record  of  performance  in  that 
regard.  We  do  not  claim  that  all  of  our  members  are 
perfect.  If  they  were  perfect,  there  would  be  no  need  for 
the  machinery  or  the  institution  we  have  created,  but  we 
accept  that  general  obligation,  and  we  have  sought  by 
the  most  rigorous  means  to  carry  it  out  in  the  conduct 
of  our  members.  We  are  very  glad  to  think  your  Board 
has  seen  the  importance  of  those  provisions,  if  not  ex- 
pressed, implied  in  the  Protocol,  for  equalizing  the 
standards  throughout  the  industry,  for  whatever  our 
dreams  may  be  in  the  future  form  of  industrial  society, 
we  are  living  to-day  in  a  condition  of  industrial  society 
where  neither  these  institutions  nor  these  factories  can 
subsist  without  some  recognition  of  the  competitive  prob- 
lem, and  certainly  no  Protocol  can  exist,  no  associa- 
tion can  exist,  if  the  practical  operation  of  the  Protocol 
is  to  penalize  the  member  of  the  Association  and  to  offer 
a  reward  to  the  non-member.  We  are  very  glad  to  see 
that  you  have  referred  to  the  importance  of  considering 
that  matter,  and  in  presenting  again  the  matter  of  the 
Protocol  label,  you  have  merely  carried  out  the  inventive 
thoughts  of  some  of  the  men  who  have  been  with  the 
problem  for  these  four  and  a  half  years. 

May  I,  with  the  same  respect  I  hope  always  to  show, 
bring  to  the  attention  of  the  Board  the  fact  it  has  not 
passed  upon  one  matter  that  may  be  of  consequence  in 
the  future  handling  of  these  matters.  You  will  recall 
my  friend  made  the  contention  that  unless  there  was 
specific  reservation  of  the  rights  of  the  parties,  the  hand- 
ling of  cases  by  the  clerks  would  establish  by  acquies- 
cence certain  propositions  of  Protocol  law.    Upon  that 


278  APPENDIX  C 

matter  we  have  taken  our  stand,  and  he  has  taken  his. 
I  don't  see  how  I  can  very  well  agree  with  him.  I  don't 
see  how  he  can  very  well  agree  with  me,  and  the  Board 
has  not  aided  us  in  that  regard. 

Mr.  Hillquit:  Just  to  clarify  the  situation  before  the 
Chair  answers  that:  Mr.  Cohen  has  obviously  mis- 
understood my  contention.  It  never  was  my  contention 
that  any  service  rendered  or  course  followed  without 
specific  reservation  creates  a  precedent.  I  never  based 
my  contention  upon  the  theory  of  legal  precedent  in  the 
technical  sense.  The  only  time  the  question  of  prece- 
dence was  at  all  discussed  by  me  was  in  connection  with 
the  practice  of  equal  distribution  of  work,  which  I  claim 
was  so  uniform,  and  so  clearly  acquiesced  in  by  both 
sides  as  to  definitely  establish  a  custom  which  has  not 
existed  before.  I  do  not  claim  now  and  I  did  not  claim 
at  any  time  that  any  act  done  by  either  side,  by  the 
Association  or  by  the  Union,  perhaps  contrary  to  its 
definite  and  concrete  rights,  would  constitute  a  waiver  of 
such  rights  in  the  future. 

Chairman  Braistdeis:  The  explanation  which  Mr. 
Hillquit  has  given  perhaps  relieves  the  Board  of  the 
necessity  of  adding  anything,  but  we  do  wish  to  say  this: 
We  have  at  all  times  urged  upon  the  representatives  of 
both  manufacturers  and  the  Union,  to  consider,  in  the 
first  place,  not  so  much  rights  as  duties,  and  to  bear 
in  mind  that  this  is  a  human  institution;  and  that  in 
order  to  make  it  work  satisfactorily  to  both  parties,  it  is 
essential  that  they  should  seek  adjustments  and  to  re- 
frain from  raising  issues  unnecessarily  and  from  insisting 
upon  positions  as  legal  rights.  We  therefore  feel  that 
what  the  clerks  were  doing  in  adjusting  these  problems 
coming  up  from  day  to  day,  should  clearly  not  consti- 
tute precedents,  except  so  far  as  they  might  be  precedents 


DECISION  OF  BOARD  OF  ARBITRATION  279 

for  their  own  action  through  growing  wisdom  and  judg- 
ment in  dealing  with  the  necessarily  difficult  problems 
which  arise.  But  in  no  sense  should  these  good  offices 
which  we  were  constantly  urging  upon  the  clerks  be 
construed  as  creating  rights.  Indeed,  we  have  on  several 
occasions  complimented  the  clerks  on  their  great  success 
in  effecting  these  adjustments.  It  seems  to  us  clear  that 
the  course  hitherto  pursued  by  the  clerks  of  effecting 
adjustments  should  be  continued  unhampered. 


APPENDIX  D 

FINDINGS      AND      RECOMMENDATIONS      OF 
COUNCIL  OF  CONCILIATION 

Appointed  by  the  Mayor  of  the  City  of  New  York  to  con- 
ciliate matters  in  controversy  between  the  Cloak,  Suit  and 
Skirt  Manufacturers^  Protective  Association,  and  the 
International  Ladies^  Garment  Workers^  Union  and  the 
Joint  Board  of  the  Cloak  and  Skirt  Makers^  Unions. 

July  23,  1915 

The  Council  appointed  by  the  Mayor  of  the  City  of 
New  York  to  assist  the  Cloak,  Suit  and  Skirt  Manufac- 
turers' Protective  Association  and  the  International 
Ladies'  Garment  Workers'  Union  to  reach  an  agreement 
on  the  matters  at  present  in  controversy  between  them, 
record  on  behalf  of  the  general  public,  their  appreciation 
of  the  peaceful  and  progressive  relations  which  have 
existed  in  the  cloak-making  industry  during  the  past 
five  years,  a  state  of  things  due  not  only  to  the  enlight- 
ened self-interest  of  the  employers  and  wage  earners,  but 
also  to  the  large  social  ideals  which  have  animated  both 
sides.  If  this  fair  prospect  has  for  the  moment  been 
clouded,  and  these  friendly  relations  have  suffered  a 
temporary  interruption,  it  is  the  aim  and  the  hope  of  this 
Council  to  pave  the  way  for  their  resumption,  not  only 
to  prevent  ground  previously  gained  from  being  lost, 
but  to  bring  about  advances  in  new  directions. 

280 


FINDINGS,   ETC.,   OF   COUNCIL  OF   CONCILIATION     281 

The  Council  remind  both  sides  of  the  very  notable 
achievement  already  to  their  credit  in  the  creation  of  the 
covenant  known  as  the  "Protocol."  And  if  this  instru- 
ment has  been  found  defective  in  certain  particulars  it 
should  be  modified,  reconstructed  or  some  more  suitable 
agreement  put  in  its  place.  In  the  endeavor  to  work  out 
the  plan  of  a  new  compact  of  this  sort,  the  Council  has 
laid  down  the  following  fundamental  rule: 

That  the  principle  of  industrial  efficiency  and  that  of 
respect  for  the  essential  human  rights  of  the  workers 
should  always  be  applied  jointly,  priority  being  assigned 
to  neither.  Industrial  efficiency  may  not  be  sacrificed  to 
the  interests  of  the  workers,  for  how  can  it  be  to  their 
interest  to  destroy  the  business  on  which  they  depend 
for  a  Hving,  nor  may  efficiency  be  declared  paramount  to 
the  human  rights  of  the  workers;  for  how  in  the  long  run 
can  the  industrial  efficiency  of  a  country  be  maintained 
if  the  human  values  of  its  workers  are  diminished  or  de- 
stroyed. The  deUcate  adjustment  required  to  reconcile 
the  two  principles  named  must  be  made.  Peace  and 
progress  depend  upon  complete  loyalty  in  the  effort  to 
reconcile  them. 

We,  therefore,  find: — 

I. — Under  the  present  competitive  system,  the  prin- 
ciple of  industrial  efficiency  requires  that  the  employer 
shall  be  free  and  unhampered  in  the  performance  of  the 
administrative  functions  which  belong  to  him,  and  this 
must  be  taken  to  include: 

(a)  That  he  is  entirely  free  to  select  his  employees  at 
his  discretion. 

(b)  That  he  is  free  to  discharge  the  incompetent,  the 
insubordinate,  the  inefficient,  those  unsuited  to  the  shop 
or  those  unfaithful  to  their  obHgations. 

(c)  That  he  is  free  in  good  faith  to  reorganize  his  shop 


282  APPENDIX  D 

whenever  in  his  judgment,  the  conditions  of  business 
should  make  it  necessary  for  him  to  do  so. 

(d)  That  he  is  free  to  assign  work  requiring  a  superior 
or  special  kind  of  skill  to  those  employees  who  possess  the 
requisite  skill. 

(e)  That  while  it  is  the  dictate  of  common  sense,  as 
well  as  common  humanity,  in  the  slack  season  to  dis- 
tribute work  as  far  as  possible  equally  among  wage 
earners  of  the  same  level  and  character  of  skill,  this 
practice  cannot  be  held  to  imply  the  right  to  a  permanent 
tenure  of  employment,  either  in  a  given  shop  or  even  in 
the  industry  as  a  whole.  A  clear  distinction  must  be 
drawn  between  an  ideal  aim  and  a  present  right. 

The  constant  fluctuations — the  alternate  expansions 
and  contractions  to  which  the  cloak-making  industry  is 
so  peculiarly  subject,  and  its  highly  competitive  char- 
acter, enforce  this  distinction.  But  an  ideal  aim  is  not, 
therefore,  to  be  stigmatized  as  Utopian,  nor  does  it 
exclude  substantial  approximations  to  it  in  the  near 
future.  Such  approximations  are  within  the  scope  of 
achievement,  by  means  of  earnest  efforts  to  regularize 
employment  and  by  such  increase  of  wages  as  will  secure 
an  average  adequate  for  the  maintenance  of  a  decent 
standard  of  Uving  throughout  the  year.  The  attempt, 
however,  to  impose  the  ideal  of  a  permanent  tenure  of 
employment  upon  the  cloak-making  industry  in  its 
present  transitional  stage  is  impracticable,  calculated  to 
produce  needless  irritation  and  injurious  to  all  con- 
cerned. 

II. — In  accordance  with  the  rule  above  laid  down,  that 
the  principle  of  efficiency  and  that  of  respect  for  the 
himian  rights  of  the  workers  must  be  held  jointly  and 
inseparably,  we  lay  down: 

{a)  That  the  workers  have  an  inalienable  right  to 


FINDINGS,   ETC.,  OF   COUNCIL  OF   CONCILIATION    283 

associate  and  organize  themselves  for  the  purpose  of 
maintaining  the  highest  feasible  standard  as  to  wages, 
hours  and  conditions,  and  of  still  further  raising  the 
standards  already  reached. 

(b)  That  no  employee  shall  be  discharged  or  discrim- 
inated against  on  the  ground  that  he  is  participating 
directly  or  indirectly  in  union  activities. 

(c)  That  the  employees  shall  be  duly  safeguarded 
against  oppressive  exercise  by  the  employer  of  his  func- 
tions in  connection  with  discharge  and  in  all  other  deal- 
ings with  the  workers.  It  is  to  be  carefully  noted  that 
the  phrase  "oppressive  exercise  of  functions"  need  not 
imply  a  reflection  on  the  character  and  intentions  of  the 
high-minded  employer. 

An  action  may  be  oppressive  in  fact,  even  though  in- 
spired by  the  most  benevolent  purpose.  This  has  been 
amply  demonstrated  by  experience.  No  human  being 
is  wise  enough  to  be  able  to  trust  his  sole  judgment  in 
decisions  that  affect  the  welfare  of  others;  he  needs  to  be 
protected,  and  if  he  is  truly  wise,  will  welcome  protection 
against  the  errors  to  which  he  is  liable  in  common  with 
his  kind,  as  well  as  against  the  inspirations  of  passion  or 
selfishness. 

For  this  reason,  a  tribunal  of  some  kind  is  necessary, 
in  case  either  of  the  parties  to  this  covenant  beheves  itself 
to  be  unjustly  aggrieved.  And  because  the  construction 
of  such  a  tribunal  is  a  delicate  and  difficult  task,  demand- 
ing the  greatest  care,  lest  on  the  one  hand  the  movements 
of  industry  be  clogged  by  excessive  htigation,  and  lest 
on  the  other  hand  the  door  of  redress  be  closed  against 
even  the  most  real  and  justified  complaint;  therefore 

III. — In  accordance  with  these  general  principles,  the 
Council  propose  that  an  agreement  be  entered  into  by 
the  Cloak,  Suit  and  Skirt  Manufacturers'  Protective 


284  APPENDIX  D 

Association,  and  the  International  Ladies'  Garment 
Workers'  Union  and  the  Joint  Board  of  Cloak  and  Skirt 
Makers'  Unions,  embodying  these  principles  and  provid- 
ing the  following: 

(a)  Every  complaint  from  either  organization  to  the 
other  shall  be  in  writing,  and  shall  specify  the  facts  which, 
in  the  opinion  of  the  complaining  organization,  consti- 
tute the  alleged  grievance,  and  warrant  its  presentation 
by  one  organization  to  the  other.  Such  complaints  shall 
be  investigated  in  the  first  instance  by  the  representa- 
tives of  the  two  associations,  chosen  for  the  purpose,  it 
being  impressed  upon  them  that  they  use  and  exhaust 
every  legitimate  effort  to  bring  about  an  adjustment  in 
an  informal  manner.  In  case,  however,  an  adjustment 
by  them  be  not  reached,  the  matters  in  dispute  shall  be 
referred  for  final  decision  to  a 

(b)  Trial  Board  of  three,  consisting  of  one  employer, 
one  worker  and  one  impartial  person,  the  latter  to  be 
selected  by  both  organizations,  to  serve  at  joint  expense 
and  to  be  a  standing  member  in  all  cases  brought  before 
the  Board.  The  remaining  two  members  shall  be  selected 
as  follows: 

The  Association  and  the  Union  shall  each  make  up  a 
list  of  ten  persons,  to  be  approved  by  the  other.  From 
these  two  lists,  as  each  case  arises,  each  party  shall  select 
one  person. 

IV. — The  articles  of  the  Protocol  numbered  First, 
Second,  Third,  Fourth,  Fifth,  Sixth,  Seventh,  Eighth, 
Ninth,  Tenth,  Eleventh,  Twelfth,  Thirteenth,  Four- 
teenth and  Fifteenth  are  hereby  incorporated  in  this 
agreement  except  as  herein  expressly  revised  and  except 
as  hereafter  modified  after  the  recommendations  of  the 
Council. 

V. — This  Council  has  been  requested  by  the  Mayor 


FINDINGS,  ETC.,  OF  COUNCIL  OF  CONCILIATION    285 

to  continue  as  a  commission  to  investigate  thoroughly 
the  fundamental  problems  of  regularization,  standards  of 
wages  and  enforcement  of  standards  throughout  the 
industry,  of  trade  education,  and  of  s.  more  thorough 
organization  of  the  industry,  and  on  the  basis  of  such 
investigation  it  shall  submit  a  constructive  policy  to  both 
organizations. 
VI. — Wages. 

I.  As  a  temporary  arrangement  until  a  maturer  study 
of  the  industry  shall  lead  to  a  final  adjustment,  the 
standard  observed  for  piece  workers  in  fijdng  piece-work 
rates  shall  be  at  the  rate  of  70  cents  an  hour  for  each 
hour  of  continuous  work  for  operators  and  piece  tailors, 
and  50  cents  an  hour  for  each  hour  of  continuous  work 
for  finishers,  taking  the  worker  of  average  skill  as  the 
basis  of  computation  and  making  no  allowance  for  idle- 
ness. 

Piece  prices  shall  be  settled  between  the  employer 
and  a  price  committee.    If  the  parties  cannot  agree,  they 
shall  call  in  price  adjusters  furnished  by  both  sides. 
Wages  for  week  workers  shall  be  as  follows: 

For  cutters $27 .  50 

For  skirt  cutters 23 .  50 

For  jacket  upper  pressers 25 .00 

Skirt  upper  pressers 23 .  00 

Skirt  under  pressers 18.00 

Jacket  under  pressers 2 1 .  00 

Sample  tailors 23 .  00 

Skirt  basters 150° 

Part  pressers 15  •  5<^ 

Canvas  cutters 13  •  00 

Skirt  finishers  $11.00,  provided  each  department  be 
permitted  to  have  one  learner  to  six  finishers. 
Reefer  pressers  and  under  pressers  to  be  paid  as  other 


286  APPENDIX   D 

pressers  providing  the  Unions  prove  their  contention 
that  such  wages  have  been  paid  outside  of  the  Associa- 
tion houses. 

Piece  prices  for  buttonhole  makers:  Class  A,  $1.30  per 
hundred  buttonholes;  Class  B,  90  cents  per  hundred. 

VII.  For  Determination  by  Arbitration. 

That  the  following  questions  shall  be  submitted  to  the 
arbitration  of  this  Council,  their  decision  to  be  rendered 
within  thirty  days,  and  to  be  accepted  as  final  and  bind- 
ing. 

(a)  Whether  the  pressers  and  piece  workers  shall 
during  eight  weeks  in  each  season  be  permitted  to  work 
overtime  on  Saturdays  until  four  o'clock. 

(6)  What  legal  holidays  shall  be  observed  in  the 
Cloak,  Suit  and  Skirt  Industry,  and  under  what  condi- 
tions they  shall  be  observed. 

VIII. — It  is  distinctly  understood  that  there  shall  be 
no  shop  strike  nor  general  strike,  nor  individual  nor 
general  lockout  during  the  term  of  this  agreement. 

IX. — The  Union  and  the  Association,  with  the  assist- 
ance of  the  Council,  will,  as  soon  as  practicable,  create  a 
Joint  Board  of  Supervision  and  Enforcement  of  Stand- 
ards throughout  the  industry. 

X. — Since  the  Council  will  continue  in  existence  for 
study  and  constructive  recommendations,  it  will  be 
available  whenever  the  parties  desire  to  consult  with  it, 
and  if  either  organization  feels  aggrieved  against  the 
other,  such  organization  may  address  the  Council  upon 
the  subject,  and  the  Council  will  do  the  best  it  can  to 
assist. 

Finally,  since  peace  in  industry,  as  in  families  and 
among  states,  is  the  offspring  of  good  will,  and  since  no 
peace  can  be  sound  or  enduring  that  is  not  based  on  this 
indispensable  prerequisite,  it  is  agreed  that  the  leaders 


FINDINGS,   ETC.,   OF   COUNCIL  OF   CONCILIATION     287 

on  both  sides  shall  exert  their  utmost  endeavors  to  create 
a  spirit  of  mutual  good  will  among  the  members  of 
their  respective  organizations,  such  good  will  taking  the 
specific  form  of  a  disposition  to  recognize  the  inherent 
difficulties  which  each  side  has  to  meet — a  spirit  of  large 
patience  under  strain,  and,  withal,  a  behef  in  the  better 
elements  which  exist  in  human  nature,  be  it  among  em- 
ployers or  wage  earners,  and  the  faith  that  an  appeal 
to  these  elements  will  always  produce  beneficent  results. 
These  recommendations,  when  accepted  by  both 
parties,  shall  constitute  the  agreement  between  them. 
This  agreement  to  enter  into  force  on  the  date  hereof 
and  to  continue  for  the  period  of  two  (2)  years,  and 
thereafter  for  like  periods  of  two  (2)  years,  unless  ter- 
minated by  either  party  on  two  months'  notice. 

Any  modification  of  the  terms  of  the  agreement,  re- 
quested by  either  party,  shall  be  presented  to  the  other 
at  least  two  (2)  months  before  the  termination  of  any 
period. 

Felix  Abler  {Chairman), 
Charles  L.  Bernheimer, 
Louis  D.  Brandeis, 
Henry  Bruere, 
George  W.  Kirchwey, 
Walter  C.  Noyes, 

Council  on  Conciliation. 
July  23,  1915. 


APPENDIX  E 

INDUSTRIAL  AGREEMENTS 

(Introduced  191 2  by  J.  Ramsey  MacDonald) 

A  Bill 

TO 

Make  Agreements  come  to  voluntarily  between  Employers 
and  Workmen  in  the  Port  of  London  legally  enforcible  on 
the  whole  Trade. 

Be  it  Enacted  by  the  King's  most  Excellent  Majesty, 
by  and  with  the  advice  and  consent  of  the  Lords  Spiritual 
and  Temporal,  and  Commons,  in  this  present  Parliament 
assembled,  and  by  the  authority  of  the  same,  as  fol- 
lows:— 

1.  Whenever  and  so  long  as  an  agreement  between 
employers  and  workmen  in  or  about  the  Port  of  London 
concerning  wages,  hours,  or  other  conditions  of  labour  is 
registered  by  the  Board  of  Trade  under  the  provisions  of 
this  Act,  the  terms  of  such  an  agreement  shall  be  implied 
terms  of  every  contract  for  the  employment  of  a  work- 
man in  the  Port  of  London,  and  any  agreement  applying 
thereto  concerning  wages,  hours,  or  other  conditions  of 
labour,  in  so  far  as  it  is  in  contravention  of  this  pro- 
vision, shall  be  void. 

2.  (i)  Any  representative  body  of  employers  and 
workmen  in  the  Port  of  London  who  have  made  an 
agreement  regarding  any  of  the  matters  referred  to  in 

288 


INDUSTRIAL  AGREEMENTS  289 

the  first  section  of  this  Act  may  apply  to  the  Board  of 
Trade  to  have  such  an  agreement  registered  under  this 
Act. 

(2)  The  application  must  be  accompanied  by  copies 
of  the  agreement,  particulars  of  the  representative  char- 
acter of  the  persons  who  have  made  the  agreement,  with 
such  other  information  as  the  Board  of  Trade  may  rea- 
sonably require. 

(3)  The  Board  of  Trade,  on  being  satisfied  that  such 
an  agreement  has  been  come  to  by  persons  representative 
of  employers  and  workmen  in  the  trade,  shall  register 
such  agreement,  but  in  no  case  shall  the  Board  of  Trade 
refuse  to  register  if  the  persons  making  application  to  be 
registered  either — 

(a)  Represent  one-third  of  the  employers  and  work- 
men directly  affected  by  the  agreement;  or 

(b)  Are  persons  who  deal  with  at  least  one-half  of  the 
total  volume  of  the  trade; 

provided  that  if  the  representatives  of  the  employers 
and  the  workmen  are  appointed  by  unions,  or  federa- 
tions, or  other  combinations,  any  employer  or  firm  of 
employers,  and  any  workman  engaged  in  the  trade  or 
section  of  the  trade  subject  to  the  agreement,  is  at  Hberty 
to  join  the  union,  federation,  or  combination  on  reason- 
able conditions. 

(4)  Any  body  of  persons  who  have  registered  an  agree- 
ment under  this  Act  shall  be  entitled  to  have  their  agree- 
ment removed  from  the  register  on  sending  to  the  Board 
of  Trade  a  written  application  to  that  effect,  and  the 
Board  of  Trade,  on  being  satisfied  that  the  persons  who 
made  the  agreement  are  no  longer  representative  persons, 
may  themselves  remove  the  agreement  from  the  register. 

3.  In  this  Act  the  expression  "Port  of  London"  has 
the  like  meaning  as  it  has  in  the  Port  of  London  Act, 


290  APPENDIX  E 

1908.  The  expression  "workman"  means  a  workman 
who  works  wholly  or  in  part  within  the  area  of  the  Port  of 
London.  The  expression  "employer"  means  any  person 
or  body  of  persons  who  employs  workmen  either  wholly 
or  in  part  within  the  area  of  the  Port  of  London. 

4.  This  Act  may  be  cited  as  the  Industrial  Agreements 
Act,  1912. 


APPENDIX  F 

SKELETON  OUTLINE  OF  PROVISIONS  OF  A  BILL 

I.  Create  a  ''National  Industrial  Board''  with  powers 
analogous  to  those  of  the  English  Industrial  Council 
under  the  English  "Trade  Disputes  Act." 

II.  Equal  representation  to  organized  labor,  organized 
employers,  and  the  pubhc,  appointed  by  the  President 
for  long  terms. 

III.  Adequate  salary  paid  to  the  Chairman  (to  be  a 
man  of  the  type  of  Sir  George  Askwith). 

IV.  In  addition  to  the  powers  included  in  the  English 
"Trade  Disputes  Act,"  give  power  to 

(a)  Consider  and  investigate  all  matters  concerning 
sanitation  and  safety. 

{h)  To  revise  trade  agreements  upon  the  appeal  of  the 
parties. 

(c)  To  hear  appeals  from  Boards  of  Conciliation  or 
Arbitration  established  under  trade  agreements. 

{d)  To  gather  statistics  upon  all  matters  involving 
wage  increase. 

V.  All  trade  agreements  to  be  validated  by  registra- 
tion with  the  "National  Industrial  Board." 

VI.  Whenever  it  shall  appear  that  the  agreement 
covers  a  substantial  portion  of  the  industry,  the  parties 
to  the  agreement  may  apply  for  its  extension  to  the  entire 
industry.  Upon  proper  hearings,  to  those  not  yet 
affected,  the  Industrial  Board  may  make  an  order  ex- 
tending the  agreement  to  cover  the  entire  industry. 

VIL  Trade  agreements  to  be  authorized  which  may 

291 


292  APPENDIX  F 

provide  for  the  preferential  employment  of  members  of 
the  trades  union  party  to  the  agreement,  and  for  Wage 
Scale  Boards,  Boards  of  Conciliation  and  Arbitration, 
Grievance  Boards,  Boards  of  Sanitary  Control,  Boards  of 
Apprentices,  etc.,  etc. 

VIII.  The  National  Industrial  Board,  before  register- 
ing any  trade  agreement,  to  make  careful  investigation  of 
the  surrounding  facts,  and  if  it  finds  that  the  agreement 
is  made  in  good  faith,  and  is  for  the  best  interests  of  the 
working  people  and  the  employers  in  the  industry,  it 
may  certify  to  the  fact,  and  its  certificate  shall  raise  an  irre- 
buttable  presumption  in  any  court  of  law  or  equity  that  such 
agreement  was  in  fact  entered  into  in  good  faith,  and  not  in 
restraint  of  trade. 

IX.  Where  agreements  create  methods  of  arbitration 
by  Boards  of  Arbitration,  Concihation,  Grievances,  or 
the  like,  the  decision  in  writing  of  such  Board  may  be 
filed  in  the  office  of  the  clerk  of  any  federal  court,  and  a 
motion  may  be  made  to  confirm  the  report  on  notice  to 
the  party  against  whom  the  decision  has  been  rendered, 
and  when  such  decision  shall  be  confirmed,  a  copy  of  the 
decree  may  be  entered  in  the  clerk's  office. 

X.  An  appeal  may  be  taken  from  any  award  by  a 
Board  of  Arbitration  to  the  National  Industrial  Board. 

XI.  Where  any  agreement  voluntarily  entered  into 
provides  methods  of  arbitration  or  conciliation,  it  shall 
be  lawful  for  either  party  to  terminate  the  same,  upon 
three  months'  notice,  but  if  not  terminated,  it  shall  not 
be  lawful  for  either  party  to  engage  in  any  strike,  walk- 
out, or  lockout  before  the  controversy  is  submitted  to 
such  tribunal. 


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THE  MACMILLAN  COMPANY 

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The  Social  Problem 

A  CONSTRUCTIVE  ANALYSIS 

By  CHARLES  A.  ELLWOOD,  Ph.D. 

Professor  of  Sociology  in  the  University  of  Missouri,  Author  of  "Sociol- 
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tive and  constructive  toward  all  the  essential  values  of  our  civilization. 

"  'The  Social  Problem'  by  Professor  Charles  A.  EUwood  is  one  of  the 
best  books  of  the  kind  I  have  ever  seen.  The  subject  is  handled  in  a 
masterful  way.  The  best  books  I  read  in  my  field  ordinarily  do  not  gain 
more  than  eighty-five  or  ninety  per  cent  of  my  assent.  This  book,  how- 
ever, I  would  endorse  to  ninety-eight  or  ninety-nine  per  cent. 

"  It  is  not  only  sound  in  its  general  positions,  but  sound  in  details.  Every 
statement  is  guarded  and  weighty.  There  is  a  fine  sense  of  the  value  of 
words,  there  is  no  duplication,  and  the  author  reaches  his  goal  with  the 
fewest  possible  sentences.  I  know  of  no  book  upon  the  social  problem, 
which  can  command  so  completely  the  endorsement  of  social  thinkers 
everywhere."  —  Professor  Edward  A .  Ross  of  the  University  of  Wisconsin, 
Author  of  "The  Changing  Chinese,"  "Social  Psychology,"  etc. 


THE  MACMILLAN  COMPANY 
Publishers         64-66  Fifth  Avenue         New  York 


The  Theory  of  Social  Revolutions 

By  brooks  ADAMS 

Author  of  "The  Law  of  Civilization  and  Decay,"  "The  New  Empire," 

etc. 

Cloth,  i2mo,  $1.25 
"A  remarkable  work."  —  The  Argo7iaut. 

"A  cleverly  written  book  by  a  clever  man  The  argument  is  that  the 
existing  social  system  will  soon  be  changed  and  that  the  courts  have  be- 
come political  and  not  judicial."  —  Pittsburgh  Post. 

"No  one  interested  in  either  history  or  politics  can  afford  to  neglect 
Mr.  Adams'  views."  —  Newark  Evening  News. 

"...  a  more  fascinating  study  of  a  topic  so  grave  is  not  often  printed." 
—  New  York  World. 

".  .  .  there  has  not  appeared  in  recent  years  so  calm  and  determined 
an  attack  upon  judicial  legislation."  —  La  Follette's  Magazine. 

"A  very  stimulating  study."  —  Review  of  Reviews. 

Labor  and  Administration 

By  JOHN  R.  COMMONS 
Professor  of  Political  Economy  in  the  University  of  Wisconsin 

Cloth,  i2mo,  $1.60 

The  history  of  labor  laws  and  strikes  has  this  in  common  to  both  — 
laws  become  dead  letters;  the  victories  of  strikes  are  nibbled  away.  Some 
philosophers  fall  back  on  the  individual's  moral  character.  Little,  they 
think,  can  be  done  by  law  or  unions.  There  are  others  who  inquire  how 
to  draft  and  enforce  the  laws,  how  to  keep  the  winnings  of  strikes  —  in 
short,  how  to  connect  ideals  with  efficiency. 

These  are  the  awakening  questions  of  the  past  decade,  and  the  subject 
of  this  book.  Here  is  a  iield  for  the  student  and  economist  —  not  the 
"friend  of  labor"  who  paints  an  abstract  workingman,  but  the  utihtarian 
idealist,  who  sees  them  all  as  they  are;  not  the  curious  collector  of  facts 
and  statistics,  but  the  one  who  measures  the  facts  and  builds  them  into  a 
foundation  and  structure.  His  constructive  problem  is  not  so  much  the 
law  and  its  abstract  rights,  as  administration  and  its  concrete  results. 


THE  MACMILLAN  COMPANY 

Publishers        64-66  Fifth  Avenue         New  York 


This  book  is  DUE  on  the  last  date  stamped  below 


JUL  9  6  1935 

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